Securing the Vote: an Analysis of Election Fraud Policy Recommendations

Securing the Vote An Analysis of Election Fraud

DemosANETWORKFORIDEAS& ACTION De-mos Board of Trustees

Stephen Heintz, Board Chair Rockefeller Brothers Fund Tom Campbell Haas School of Business, University of California, Berkeley Juan Figueroa Puerto Rican Legal Defense and Education Fund Robert Franklin Interdenominational Theological Center Charles Halpern Visiting Scholar, University of California Law School, Berkeley Eric Liu Author and Educator Arnie Miller Issacson Miller Wendy Puriefoy Public Education Network Miles Rapoport De-mos David Skaggs Center for Democracy and Citizenship Dianne Stewart Center for Public Policy Priorities Linda Tarr-Whelan Tarr-Whelan and Associates Ernest Tollerson New York City Partnership Ruth Wooden Porter Novelli

Afﬁliations are listed for identiﬁcation purposes only. Securing the Vote An Analysis of Election Fraud

Lori Minnite Assistant Professor, Political Science, Barnard College David Callahan Director of Research, De-mos

- Demos A NETWORK FOR IDEAS & ACTION Acknowledgments

The following people provided information or suggestions for this report. (Please note that some professional afﬁliations may have changed.)

Stephen Ansolabehere, Massachusetts Institute of Technology Louis Lawrence Boyle, Deputy Chief Counsel, Office of Chief Counsel, Department of State, Commonwealth of Pennsylvania Phil Carter, Special Assistant Attorney General, State of Mississippi Ron Hayduk, City University of New York Bill Jones, Former Secretary of State, California Amy Kincheloe, Office of the Attorney General of Texas Sharon Larsen, Assistant General Counsel, Division of Elections, Florida Department of State Joseph Lowndes, New School for Social Research Al Lenge, Managing Director and Assistant General Counsel, Connecticut State Election Enrollment Commission John Lindback, Elections Division, Oregon Secretary of State’s Office Mike McCarthy, Office of the Secretary of State, State of Minnesota Kenneth Raschke, Assistant Attorney General, State of Minnesota

The views expressed in this report do not necessarily reﬂect the views of the D-emos Board of Trustees.

Photo credits: page 10, Mark Wilson/Getty Images; pages 15 and 41, Mario Tama/Getty Images; pages 21 and 25, David Friedman/Getty Images

De-mos: A Network for Ideas and Action 220 Fifth Avenue, 5th Floor New York, NY 10010 212.633.1405 (phone) 212.633.2015 (fax) www.demos-usa.org Contents

Preface 7

Executive Summary 9

I. Election Fraud in the United States: An Overview 13 What Is Fraud and Why Does It Matter? Research Methodology A Framework for Understanding Fraud Election Fraud Today

II. Election Fraud and the Law 19 State Laws and Enforcement Federals Laws and Enforcement

III. The Impact of Election Reforms on Voting Integrity 23 The National Voter Registration Act of 1993 Voting by Mail Election Day Registration

IV. Key Election Administration Issues and Fraud 29 Fraud and Voter Identiﬁcation Technical Modernization Partisanship in Election Administration

V. Best Practices in the States 33 Managing Voter Registration Records Voter Identiﬁcation Requirements Nonpartisan or Bipartisan Election Administration

VI. Policy Recommendations 37

Appendix: Major Recent Cases of Alleged Election Fraud 39 A. The 1997 Primary Mayoral Election, Miami, Florida B. The 1996 Dornan/Sanchez Contest, Orange County, California C. The 2000 Election, St. Louis, Missouri

Notes 45

Preface

When the Help America Vote Act (HAVA) was enacted last fall, a new era began in the history of electoral reform. The law provides sweeping guidance to the states on how to overhaul their voting systems and provides new funding for reform measures. Unfortunately, this major step forward has been shadowed by bitter partisan divisions over how best to prevent election fraud. As finally enacted, the new election law con- tains requirements for verifying the identity of voters that many critics worry will create obstacles to full voter participation. As the states begin to implement HAVA, and as they consider other important electoral reforms such as election day registration, many claims and counterclaims are being heard about the problem of election fraud. In the absence of strong empirical research, anecdotal stories too often drive these debates. This report represents an important contribu- tion to our understanding of the problem of election fraud. Based on an extensive research effort, it is the most in-depth examination of election fraud issues to date. The research, led by Barnard College professor Lori Minnite, used several approaches to analyzing the incidence of election fraud nationwide, as well as in a handful of major states. The report also examines claims about whether various electoral reforms—such as the National Voter Registration Act, mail-in voting, and election day registration—have led to increased fraud. The overall conclusion of the report is that the incidence of election fraud in the United States is low and that fraud has had a minimal impact on electoral outcomes. The report also finds that the important electoral reforms of recent years have not led to increased election fraud and, in some cases, have helped reduce the potential for fraud. More generally, the report observes that the conditions that have historically led to election fraud have been on the decline for many years. Technological improvements in voting technology, stronger enforcement efforts, and changes in election administration can further reduce the likelihood of fraud. Based upon these research findings, we strongly believe that the states should work to make registering and voting as accessible as possible to all Americans and can feel confident in doing so without increasing the chances of fraud. De-mos is proud to be part of an energetic national network of reform groups that are seeking to maximize electoral participation. We hope that public officials, reform advocates, and others will find this report to be a useful resource. Please do not hesitate to contact De-mos for further information or assistance.

Miles Rapoport President, De-mos

Steven Carbó Director, Democracy Program

De-mos: A Network for Ideas & Action 7

Executive Summary

Election fraud is a hotly contested topic in public debates about electoral reform. Debates over election fraud are not new. They have been a staple part of discussions about elections and democracy in the United States for more than a century. But in recent years, issues of fraud and voting integrity have increasingly come to the forefront of public policy discussions over the health of America’s democracy. Since the 2000 election, a historic effort has been underway to strengthen voting systems across the 50 U.S. states and also to address obstacles to broader electoral participation. However, at both the federal and state level, efforts to move forward a reform agenda have frequently been complicated by heated debates over issues of election fraud and the integrity of voting systems. In Congress, disagreement over voter identiﬁcation provisions in federal election reform legislation resulted in an acrimonious legislative process that delayed passage of the Help America Vote Act. The 2002 election further underscored the salience of the issue in U.S. electoral politics. With control of the U.S. Senate hanging on the outcome of at least eight Senate races too close to call, the integrity of all ballots was viewed as a matter of grave importance. Allegations of fraudulent registration and balloting, as well as voter intimidation, were made in a number of states. Opponents of efforts to make voting easier and more accessible often cite the potential for election fraud as a reason to oppose reforms, such as election day registration, aimed at addressing one of the most challenging issues facing our electoral system: low voter turnout. As federal and state ofﬁcials consider future reform efforts, as well as the merits of existing reforms, and begin implementing the new Help America Vote Act, there is an acute need for better information and analysis about election fraud issues. Yet to date there have been no major studies of election fraud in the United States. Too often, hearsay and anecdotal stories are put forth as fact during critical policy delibera- tions. This research report provides a new foundation of information and analysis to inform public discussions about the integrity of America’s electoral system.

De-mos: A Network for Ideas & Action 9 Approach •The disenfranchisement of voters through antiquated voting systems, system error, and improper management of registra- Election fraud is defined in this report as the corruption of the tion databases, as occurred in Florida in the 2000 election, is process by which votes are cast and counted. Fraud may involve a far bigger problem than traditional forms of election fraud. wrongdoing by either individual voters or, as is more commonly the case, by organized groups such as campaigns or political parties. Efforts to make it easier to register and vote arecompatible This report examines both kinds of fraud. Drawing on a wide range with the prevention of election fraud. Fears of election fraud of sources, we address the following questions: How often does should not inhibit electoral reform efforts aimed at addressing election fraud occur? How serious a problem is fraud, compared the problem of low voter participation.

•States can reduce the potential for fraud by integrating and computerizing state voter registration records, as mandated by the new federal election law, the Help America Vote Act. These same reforms also reduce problems at the polls and make registration and voting easier.

•Reduced partisanship among election officials decreases the chances of fraud and also helps create more professionalized election administration.

•Election day registration (EDR), which has been proven to increase voter participation, also reduces the possibility for fraud as more registrations are handled by election officials. to other problems with the election process, such as those that occurred in Florida in the 2000 election? What kinds of voting •Vigorous signature-matching procedures can prevent fraud methods are most vulnerable to corruption? What administrative, under mail-in voting election systems. technological, and legal steps can be taken to reduce the chances of election fraud while also expanding the opportunities to reg- Best practices in select states show how to prevent fraud while ister and vote? keeping voting accessible. •Ten states have very effective unified, computerized statewide Central Findings records that are checked against other records, such as state death records and the National Change of Address database. Available evidence suggests that the incidence of election fraud is Under the Help America Vote Act, all states must now develop minimal across the 50 U.S. states and rarely affects election out- similar registration databases, which will go a long way toward comes. preventing opportunities to committ fraud.

•Election officials generally do a very good job of protecting •A number of states have voter identification requirements that against fraud in the system and ensuring that election out- allow a wide range of voter I.D., which can be used when comes fairly reflect the intentions of voters. implementing HAVA’s I.D. requirements for certain first-time voters. •Conditions that give rise to election fraud have steadily declined over the last century as a result of weakened political parties, •A few states have made strides toward reducing partisan control strengthened election administration, and improved voting of elections by having bipartisan state elections boards oversee technology. elections. An even better practice would be the adoption of nonpartisan state elections boards. •There is little available evidence that election reforms such as the National Voter Registration Act, election day registration, and mail-in voting have resulted in increases in election fraud.

4 Securing the Vote: An Analysis of Election Fraud Policy Recommendations

• Upgrade technology in the states. The new Help America Vote Act, which mandates the creation of statewide computerized registration systems and also provides states with money to upgrade voting machines, should be fully funded and effectively implemented in a uniform and nondiscriminatory manner. It is especially important that new state-of-the-art registration systems allow for interagency networking (for prompt and proper transmittal of registration information under NVRA) and local polling place access to systems (through laptops or other means).

• Implement I.D. requirements that do not burden voters. The new federal election law puts undue burdens on voters to prove their identity at the polls. The law should be modified to expand the list of acceptable identifying documents and to allow state or local officials discretion to incorporate or expand forms of identification currently in use. State officials should ensure the equal and nondiscriminatory application of requirements.

• Reduce partisan control of elections. Important election administration positions should only be filled by nonpartisan professionals. Regular training and exchanges with elections administrators from other jurisdictions can increase officials’ commitment to the professional administration of the democratic process itself, as opposed to party loyalty.

• Strengthen enforcement. The federal and state criminal penalties for election fraud are signiﬁcant and serve as a powerful deterrent against fraud. All states should ensure adequate funding and authority for ofﬁces responsible for detecting and prosecuting fraud. In addition, all states should track allegations of election fraud, as well as the outcomes of criminal investigations, and make this data available to the public.

• Establish election day registration (EDR). EDR usually requires voter identiﬁcation and authorization in person before a trained election worker, which reduces the opportunity for registration error or fraud.

De-mos: A Network for Ideas & Action 11

I. Election Fraud in the United States An Overview

Since the 2000 election, a historic effort has been underway to strengthen voting systems across the 50 U.S. states and to address obstacles to broader electoral participation. At both the federal and state level, however, efforts to move forward a reform agenda have frequently been complicated by heated debates over issues of election fraud and the integrity of voting systems. In Congress, disagreement over voter identiﬁcation provisions in federal election reform legislation resulted in an acrimonious legislative process that delayed passage of the Help America Vote Act. Similarly emotional debates over I.D. provisions have occurred in the states, and these debates are likely to heat up as state governments begin work to implement the new federal election law. The 2002 election further underscored the salience of the issue in U.S. electoral politics. With control of the U.S. Senate hanging on the outcome of at least eight Senate races that were too close to call, the integrity of all ballots was viewed as a matter of grave importance. In the wake of the election, fraudulent registrations and absentee balloting were alleged to have occurred in a hotly contested Senate race in South Dakota1 and elsewhere. Allegations of voter intimidation were made in Arkansas and other states. Meanwhile, the specter of fraud played a major role in the defeat of ballot initiatives in California and Colorado that would have enacted election day registration into law, with opponents of the initiatives arguing that election day registration would increase the potential for fraud.2 Debates over election fraud are not new. They have been a staple of discussions about elections and democracy in the United States for more than a century. But in recent years, issues of fraud and voting integrity have increasingly come to the forefront of public policy discussions over the health of America’s democracy. Even before the 2000 election, consistently low voter turnout rates and obstacles to participation motivated various efforts to increase voter registration and turnout—efforts that in turn raised questions about voting integrity. Critics of reforms—such as the institution of mail-in voting in Oregon, the loosening of guidelines for absentee ballot use, and, most notably, the National Voter Registration Act of 1993 (the “motor voter” act)—have charged that

De-mos: A Network for Ideas & Action 13 While the issue of fraud is raised continually in discussions of election reform, to date there have been no major studies of election fraud in the United States. these reforms increase the chances of voter fraud. Other fre- ting registration applications for fictitious people, dead people, quently proposed reforms, such as election day registration, or real people who can be ineligible or eligible to vote and have been criticized on the same grounds. who may or may not know of or consent to the fraud. Second, As federal and state officials consider future reform efforts, voters may commit fraud at the point of voting. A voter may as well as the merits of existing reforms, and begin imple- vote multiple times using the name or names of another voter. menting the new Help America Vote Act, there is an acute In the case of a vote cast using the name of a real person, that need for better information and analysis about election fraud person may or may not be eligible to vote and may or may issues. While the issue of fraud is raised continually in dis- not consent to the fraud. Voters consenting to the appropri- cussions of election reform, to date there have been no major ation of their vote by another may do so because they do not studies of election fraud in the United States. Too often in this plan to vote, have little interest in voting, or receive some area, hearsay and anecdotal information are put forth as fact kind of material benefit—a practice called vote buying. in important public policy debates. Many key questions about Organized Fraud. Fraud is easier for organized groups fraud remain unanswered, including: How often does elec- to commit than it is for individual voters because such groups tion fraud occur? How serious a problem is fraud compared have resources and/or direct access to election machinery. with other problems with the election process, such as those In all but the most extraordinary of cases—for instance, when that occurred in Florida in the 2000 election? What kinds an election victory depends on a handful of votes—fraud voting methods are most vulnerable to corruption? What must be committed through a conspiracy to have an impact administrative, technological, and legal steps can be taken to on the outcome of an election. Existing systems for registra- reduce the chances of election fraud while also expanding oppor- tion and voting provide considerable opportunity for orga- tunities to register and vote? This report seeks to provide some nized fraud. Such fraud can take several forms. First, political initial answers to these and other vital questions. parties, campaign organizations, or other groups can perpe- trate organized fraud through filling out fraudulent absentee or mail-in ballots. Second, local election administrators or What Is Fraud and Why Does It Matter? poll workers can commit clear-cut fraud by not counting or Elections are the mechanisms by which people choose their destroying ballots, allowing votes that should have been representatives. Given that the integrity of this process is barred, and tampering with ballots. Third, interested groups central to American democracy, there can be no compro- can organize large-scale vote buying—for example, providing mise on the need for fair elections determined without the incentives for otherwise uninterested voters to go to the polls taint of fraud—whether on the part of voters, political parties, and vote in a certain way—or coordinate efforts to help large election administrators, or others. numbers of voters vote more than once. A general definition of election fraud is the corruption of Beyond these traditional conceptions of fraud, many the process of casting and counting votes. Fraud may involve people are concerned about official efforts to corrupt the wrongdoing by either individual voters or, as is more often election process or erect barriers to participation. For example, the case, by organized groups such as campaigns or political election officials can deliberately corrupt the election process parties. This report focuses on fraud as it has traditionally been by manipulating registration databases to remove the names defined, and specifically on two common forms of fraud: of people likely to vote in a certain way so that these people Individual Fraud. Voting in America is a two-stage process. are unable to cast ballots when they arrive at polling places. In nearly all states, an eligible citizen who wants to vote must Corruption of this kind was widely alleged to have taken first register using his or her permanent home address. After place in Florida and other states during the 2000 election. successfully completing a voter registration application, the Deliberate disenfranchisement of voters may also occur voter goes to the polls—or, in Oregon, receives voting mate- because of other kinds of official misconduct: turning away rials through the mail—and casts his or her ballot. Voters may voters already in line when polls close; intimidating or mis- violate laws governing the registration process by misrepre- informing voters when they arrive the polls; producing mis- senting themselves as eligible when they are not, or submit- leading or poorly designed ballots; failing to provide bilingual

14 Securing the Vote: An Analysis of Election Fraud voting materials, as required by law; failing to upgrade or scholars is election fraud. Remarkably, there are no definitive repair antiquated voting systems in specific election dis- academic studies of election fraud in the contemporary period, tricts; and by other means. nor are there studies of fraud by government agencies con- Overall, the disenfranchisement of voters through anti- cerned with the administration of elections in this country. quated voting systems, errors, mismanagement of registration The difficulty of gathering data on fraud explains much bases, and intimidation or harassment is a far bigger problem of this vacuum in analysis. Like many of the rules governing today than traditional forms of election fraud. The prob- American elections, the rules dealing with election fraud and lems in Florida in 2000, which determined the outcome the state and local agencies assigned the responsibility of of a presidential election, are dramatic evidence of this handling fraud claims vary widely from state to state and, in some cases, from locality to locality. In many states the secretary of state is the chief elections officer, and his or her office is the state office primarily responsible for maintaining election records and receiving complaints of fraud. In other states, complaints of election fraud are first received and investigated by the state attorney general. In still other states, neither the secretary of state nor the attorney general maintains voting and elections records or handles any matters related to fraud at all. Instead, those responsibilities are assigned to a state board of elections or other elections agency. Since so few fraud claims evidence criminal intent, law enforcement agencies are only occasionally involved in prosecuting cases. Finally, a number of states, especially those lacking a centralized voter registration or elections management system, allocate the responsibility for receiving and investigating point. These problems have been analyzed and highlighted complaints of election fraud to local or county boards of elec- in a number of studies and reports over the past two years.3 tions or district attorneys, with little to no responsibility or Civil rights advocates have been particularly active in chal- accountability vested in any state agency. lenging official forms of election malfeasance as violating While the analysis of this report is limited by the lack of various provisions of the Voting Rights Act. This report comprehensive and accessible statistical data on election does not focus on these issues. Rather, it looks exclusively fraud, the authors were able to develop an in-depth analysis at election fraud as the problem has commonly been dis- of election fraud in the United States today by drawing on cussed over the past century. a wide range of sources.

• First, we conducted an analysis of the incidence of elec- Research Methodology tion fraud from 1992 to 2002 in 12 states that collec- tively represent about half of the electorate and are The administration of elections for all public offices in the drawn from all of the major regions of the country. United States, from county dogcatcher to the U.S. presi- These states include: Alabama, California, Florida, dency, is controlled by state and local election officials. This Georgia, Illinois, Minnesota, Mississippi, New York, makes election procedures radically different from state to Oregon, Pennsylvania, Texas, and Wisconsin. For each state and, in many places, from county to county. Given this of these states, we conducted Lexis-Nexis searches of diffused reality, it is difficult to assess the overall integrity of news databases, as well as the statutory and case law for U.S. election systems. While no other aspect of American pol- evidence of a record of prosecution of voter fraud. We itics has received as much scrutiny over the last fifty years as also contacted selected state officials, including attor- the behavior of the American electorate, the one area in this neys general and secretaries of state. vast field of inquiry that has received very little attention by

De-mos: A Network for Ideas & Action 15 Overall, the disenfranchisement of voters through errors, antiquated voting systems, and mismanagement of registration databases is a far bigger problem today than traditional forms of election fraud.

• Second, we conducted a complete Nexis search on voter the process and facilitate voting without bringing about fraud throughout the United States since the 2000 elec- greater fraud. Exaggerated fears of fraud should not stand tion, supplemented by searches related to several high- as an obstacle to reforms aimed at expanding participation. profile cases of election fraud that occurred before Declining Political Parties. Historically, local political 2000. The search produced close to 2,000 references, parties have played an important role in perpetrating elec- each of which was thoroughly examined. tion fraud. During the late 19th century and well into the 20th century, a key motive for fraud was the immense local • Third, we surveyed the academic literature, a wide variety patronage benefits afforded to winning parties. Under these of government documents, congressional testimony and conditions, parties, patronage, and fraud were intertwined. research reports, law journal articles, and other sources Election fraud was perpetrated by partisans acting together on election reform from professional, research, and reform to steal elections. Local party organizations competed for organizations. voters and controlled votes through patronage. When elec- • Fourth, we analyzed in considerable depth some of the tions were fully controlled by local party organizations, highest-profile cases of real or alleged fraud in the United ballots were easily destroyed, miscounted, or falsely multi- States over the past decade, including notable cases in plied, and voters could be strongly influenced by bosses or Missouri, California, and Florida. local elites to vote in specific ways. Typically, cases of election fraud involved organized efforts by partisan election • Fifth, we conducted an extensive analysis of fraud issues officials, party leaders, and politicians rather than by the voters that surround particular voting methods or reforms, such themselves.4 Today, local party organizations are relatively as the NVRA, election day registration, and absentee bal- weak to nonexistent, in part because their access to patronage loting. Drawing on state and federal reports, as well as has all but disappeared. They no longer control lucrative news and legal databases, we evaluated the charges often franchises, run police and fire departments, set utility rates, made about fraud and these reforms. or build large-scale public works. However, in many states • Finally, we examined “best practices” in the states aimed key election officials are openly partisan and may also play at balancing fraud prevention with increased opportuni- an active role in partisan political campaigns, a conflict of ties for voting. interest that increases the potential for fraud. Strengthened Election Administration. At the same time that political parties have weakened, modern election A Framework for Understanding Fraud administration has become more sophisticated and fraud has become more difficult. The reforms put in place in the late While heated debates over election fraud have been going 19th century and early 20th century required voters to reg- on for more than a century, the circumstances that sur- ister in advance of elections and election authorities to keep round voting and elections have changed dramatically over registration records. While some of these reforms reduced time and continue to evolve rapidly today. Elections remain the opportunities for fraud, they also had a negative impact as contested as ever, but the conditions conducive to elec- on democratic participation, making voting especially more tion fraud have steadily declined. This trend is likely to con- difficult for poor and working-class people.5 The NVRA, tinue in the foreseeable future. Three factors account for as well as the advent of election day registration in six states, this change: declining political parties and machines, strength- has helped to reduce the obstacles to voting that accom- ened election administration, and improved voting tech- panied voter registration requirements. In the wake of the nology. While some level of fraud, as traditionally defined, 2000 election, considerable attention has been focused on is likely to exist within any electoral system, current trends ways to improve election administration to strengthen the suggest that it is more possible than ever to further open integrity of the election process; a number of reform mea-

16 Securing the Vote: An Analysis of Election Fraud sures have already been passed in the states. Particular atten- • Notable election reforms of the past decade—such as the tion has been given to the need to create statewide com- NVRA, more permissive absentee balloting rules, all puterization registration systems in all states, as now required mail-in voting in Oregon, and the enactment of election by the Help America Vote Act. As further reforms are day registration in three new states—do not appear to enacted, facilitated by new federal monies, election admin- have resulted in any significant increase in voter fraud. istration will continue to be strengthened as a bulwark (See Section III.) against fraud. (See Section IV.) • Analysis of several cases of election fraud that have Improved Voting Technology. Steadily improving voting received significant attention in recent years suggests technology has also served to reduce opportunities for elec- that some of the most notable allegations of fraud have tion fraud, a trend that is likely to accelerate in the near proved to be baseless. (See Appendix.) While the 1997 future. Despite the many problems with voting systems that primary mayoral election in Miami, Florida, was the were spotlighted by the 2000 election, U.S. voting systems most egregious fraud case in recent history, there are as a whole are substantially more reliable and ensure higher other noted cases where charges of significant vote fraud levels of voting integrity than was the case even a few decades have been disproved, such as the 1996 Dornan/Sanchez ago. Since the 2000 election, a number of states have already contest for the House of Representatives in Orange moved to implement major technology upgrades in voting County, California. There are yet other cases, such as technology. Additional upgrades will certainly occur as the 2000 election in St. Louis, Missouri, in which politi- federal funds for such improvements flow to the states as a cians have made great hay, but charges of widespread result of the Help America Vote Act. fraud have not been substantiated. Fewer Trade-Offs: Easier Balloting, Secure Balloting. Some level of fraud has always been seen as inevitable and The low level of election fraud in the United States acceptable in the U.S. electoral system. In historical terms, today does not preclude the need for continued vigilance there is less and less opportunity to commit fraud today to ensure the integrity of election systems. But it does sug- in ways likely to decide elections. This makes it more pos- gest that reforms aimed at simplifying registration and sible than ever to facilitate voting without trading off the voting can be implemented without risking a significant goal of secure elections. As this report shows, steps taken corrupting of elections by fraud. Even if only partly imple- in the past decade to open the process have not resulted mented, the many technological and administrative in increased fraud. reforms recommended by national and state commissions since the 2000 election, as well as other best practices dis- Election Fraud Today cussed in this report, can go a long way toward enhancing election integrity. (See Section IV.) These same reforms Based on the research and analysis for this report, we offer can facilitate programs, such as election day registration, several conclusions about election fraud in America today: that are intended to make voting easier. • Election fraud appears to be very rare in the 12 states examined. Legal and news records turned up little evidence of significant fraud in these states or any indication that fraud is more than a minor problem. Interviews with state officials further confirmed this impression. An authoritative study undertaken in the largest U.S. state, California, by CalTech professor R. Michael Alvarez found little incidence of fraud during the period 1994–2001.6

De-mos: A Network for Ideas & Action 17

II. Election Fraud and the Law

The opportunity to commit election fraud is constrained by a matrix of state and federal laws. Election fraud is a serious crime that can be prosecuted at the federal and state levels, where penalties carry ﬁnes, lengthy prison terms, and, in the case of illegal voting by non-citizens, deportation.7 However, the effectiveness of laws depends on their enforcement and implementation.

State Laws and Enforcement The Constitution grants states broad jurisdiction over the elective process, though the authority of the states in these matters is not absolute.8 The Fifteenth, Nineteenth, and Twenty-sixth Amendments prohibit states from restricting the franchise based on race or color, gender, or minimum age (18 years) of the voter, respectively. The Supreme Court has found that Congress is within its constitutional authority to pass laws governing the timing of federal elections, voter registration, access to the ballot for the elderly and disabled, and, perhaps most important, in the area of prohibitions against racially discriminatory voting practices.9 However, within this framework, the states are granted wide powers to qualify voters and establish rules for conducting federal, state and local elections. Within this framework for regulating the electoral process, the states have exhibited a full ﬂowering of differences in the manner in which they administer elections. State election laws governing voting vary in their level of speciﬁcity, with many states granting localities considerable discretion in the way they run elections. For example, Oklahoma has standard election day procedures and a single voter registration and election management system, and it uses only one type of voting machine. In contrast, before a recent reform law was enacted, Pennsylvania’s election law provided few statewide guidelines and near-autonomy to the state’s 67 counties in the matter of election day procedures. Pennsylvania had 67 different election systems using a variety of voting machines.10

De-mos: A Network for Ideas & Action 19 On election day in South Dakota, where the biggest story of alleged voter fraud in the 2002 election cycle took place, the statewide phone number set up by federal ofﬁcials to report any voting irregularities received only one call.

Federalism, and the authority over election procedures the Justice Department’s Civil Division. Election-related granted to states, also explains why laws criminalizing fraud crimes are handled by the Public Integrity Section of the differ across the states. All states have laws governing elec- Justice Department’s Criminal Division. A manual for federal tion crime. However, because of the historically parochial prosecutors of election crimes defines election fraud as manner in which states administer elections, there is wide “conduct that corrupts the process by which ballots are variability in how they handle the problem of criminal elec- obtained, marked, or tabulated; the process by which election fraud. All states prohibit voting by noncitizens (although tion results are canvassed and certified; or the process by some localities permit such voting in local elections); most which voters are registered.”14 states have various restrictions that bar voting by individ- Federal election law is an amalgamation of statutes. Some uals convicted of felonies,11 as well those who have been of them expressly apply to elections and voting, and others, ruled mentally incompetent by a court. Most states have such as statutes prohibiting mail fraud, have been used to prohibitions against falsifying voter registration informa- prevent and punish voter fraud. Most federal statutes apply tion, voting more than once in an election, impersonating only to federal or mixed federal/state and local elections. another voter, intimidating or coercing voters, and bribing In order for election crime to rise to the level of federal pros- voters or buying votes. Most of these crimes are classified ecution, “there must be some substantive irregularity in the as felonies and carry fines and prison sentences. In some voting act ... which has the potential to taint the election states, a person convicted of voter fraud can permanently itself.” 15 The Supreme Court has found a constitutionally lose his or her right to vote. guaranteed right to vote and Congress has passed legisla- State election laws allocate the responsibility for ensuring tion to protect this most fundamental of all rights. There fair elections to various agencies and officials, and it is their remains debate, however, over whether or not the responsibility to administer and monitor the electoral process Constitution guarantees a right to vote in purely state and to ensure that it is free of corruption. Local election and local contests—here the judicial record is inconsistent. law enforcement officials also play a role in enforcing elec- Federal prosecutors, therefore, avoid investigating fraud tion laws, although the familiarity of these officials with the allegedly committed in these elections. ins and outs of election laws and the lines of enforcement Federal election law can be divided into two categories: authority varies considerably within states. While it is incum- anti-intimidation laws and anti-trafficking laws. Anti- bent upon government officials to bring criminal charges intimidation laws make it a felony to conspire to “injure, where appropriate, all states also empower private citizens oppress, threaten, or intimidate any inhabitant of any State, and organizations to bring civil suits to contest election Territory, or District in the free exercise or enjoyment of any results.12 Likewise, the NVRA provides a private right of right or privilege secured to him by the Constitution or laws action to any person aggrieved by a violation of the Act.13 of the United States or because of his having exercised the same.” 16 They also provide for criminal punishment of anyone who deprives another of federally secured rights to vote. Federal Laws and Enforcement Anti-trafficking laws, on the other hand, restrict a citizen’s Despite state jurisdiction over election administration, there right to vote by prohibiting the offering, making, soliciting, is a role for the federal government in prosecuting voter or receiving of payments in return for voting or withholding fraud when federal interests are at stake. a vote. Penalties include a fine of up to $10,000 and five Historically, the federal role has extended to ensuring elec- years imprisonment. The Justice Department, as a matter tions that are free of corruption and in eliminating dis- of practice, does not prosecute voters whose only involve- crimination against minority voters protected by the Voting ment in voter fraud is in compromising their votes, nor does Rights Act of 1965, as amended. The enforcement of the it prosecute isolated instances of vote buying, because “iso- Voting Rights Act concerns civil offenses and is handled by lated incidents do not implicate federal interests sufficiently” to warrant federal interference in what is traditionally a state

20 Securing the Vote: An Analysis of Election Fraud function. It appears that the majority of vote buying schemes that are prosecuted involve small amounts of money and occur in low-income neighborhoods.17 On October 1, 2002, U.S. Attorney General John Ashcroft announced the Voting Access and Integrity Initiative, aimed at enhancing the Department of Justice’s “ability to deter discrimination and election fraud, and ... to prosecute violators vigorously whenever and wherever these offenses occur.” 18 The initiative involved the creation of task forces of district election officers, assistant U.S. attorneys appointed by each of the U.S. Attorneys to serve in this new capacity for the 2002–2004 period, and FBI officials whose job it is was to coordinate “on-the- ground investigative and prosecutorial coordination” with state and local elections and law enforcement per- sonnel to “deter and detect discrimination, prevent electoral corruption, and bring violators to justice.”19 Federal monitoring of elections has been around since the Reconstruction period, but most often it has been directed toward protecting the voting rights of minority groups at the polls. What is significant about the Justice Department’s involvement in the recent midterm elections is the linking of voting rights with protection from corruption of the electoral process by voter fraud, reflecting a new view that voter fraud deserves the same level of scrutiny from federal law enforcement officials historically required to guard against racial discrimination in voting. During the month of October 2002, the district election officers opened 16 cases into allegations of voter fraud.20 Federal officials do not comment on the status of open investigations, but it is of interest to note that on election day in South Dakota, where the biggest story of alleged voter fraud in the 2002 election cycle took place, the statewide phone number set up by federal officials to report any voting irregularities received only one call.21

De-mos: A Network for Ideas & Action 21

III. The Impact of Election Reforms on Voting Integrity

Proposals for election reform aimed at broadening participation have historically generated widespread concerns about increased fraud. In this section, we analyze issues of fraud in relation to three major reforms: the National Voter Registration Act, voting by mail, and election day registration. Examining available evidence, including federal and state studies, we discuss how these reforms have affected opportunities to commit election fraud.

National Voter Registration Act of 1993 The NVRA, also known as the “motor voter” law, established national standards governing voter registration and voter roll purging. The law simplified voter registration by permitting mail-in registration; by increasing the locations where voters could register to include driver’s license offices, military recruiting offices, and welfare and other public agencies; and by requiring these agencies to send registration cards to county registrars. It also established safeguards for voters who move within their jurisdiction. The NVRA has shifted some of the burden of expanding voter registration from voters to states and localities by requiring states and localities to comply with new voter list purging and reporting standards. As such, the act has presented challenges for keeping voter rolls up-to-date. Prior to the NVRA, states and localities established their own standards for purging voter files, and some removed voters from voting rolls for failure to vote. NVRA requires states to keep voter rolls up-to-date, but restricts their ability to purge voters, permitting purges only upon a voter’s request, death, felony conviction, mental incompetence, or upon relocation, provided the voter verifies the address change in writing.22 Despite a slow start, the NVRA is proving very successful in meeting its purpose of increasing the number of eligible citizens who register to vote in federal elections. Registration rolls have grown nationally by nearly 30 percent since its passage. Project Vote recently estimated that NVRA is responsible for more than 70 million new voter

De-mos: A Network for Ideas & Action 23 In their responses to the most recent FEC inquiries about the NVRA, no states raised the issue of voter fraud among their implementation problems. registrations.23 Along with this increase in access to the fran- Critics of the NVRA’s restrictions on list purges (and the chise, however, has come the argument that greater access costs now associated with purging) point to the consider- inevitably leads to more voter fraud. For example, Senator able amount of “deadwood,” or ineligible voters, on voting Christopher S. “Kit” Bond (R-Mo.) charged in a Washington rolls. Deadwood is presumed to be fodder for voter fraud— Post opinion piece that the NVRA “not only caused sloppy names of voters no longer living in a jurisdiction, dead, or voter rolls, it actually facilitated organized vote fraud” in otherwise ineligible to vote but available for identity theft the 2000 election in Missouri.24 John Samples, the director by those who would commit fraud by voting in their name. of the Center for Responsive Government at the conserv- Indeed, as the states have come into compliance with the ative Cato Institute, recently testified before the Senate NVRA’s list maintenance and anti-purging requirements, Rules and Administration Committee that the NVRA has the number of “inactive” registrants has significantly increased, encouraged lax registration requirements (through the use from 1.7 million in 1994 to more than 18 million in 2000, of mail-in registration forms) that “have left the voter rolls or 11 percent of the total number of registered voters.28 in a shambles in many states,” breeding mistrust in the elec- The NVRA permits the maintenance of inactive lists, or toral process and “foment[ing] ‘the appearance of corrup- lists of voters who have failed to respond to an address verifi- tion,’ that has, fairly or not, done real damage to American cation notice sent by the voter registrar confirming a change government.” Because the NVRA “has made it difficult if of address. Inactive lists represent the churning of voter records not impossible to maintain clean registration rolls,” Samples that results from combining a voter registration system tied said, the NVRA deserves the blame for part of the decline to territorially based eligibility criteria with high voter mobility.29 in trust in government observed by political scientists over Voters do not stay on inactive lists indefinitely; they may be the past four decades.25 The Wall Street Journal wrote no deleted from inactive lists after failing to vote in two succes- fewer than four editorials in 2001 claiming voter fraud is sive federal elections. In fact, many of the names of inactive out of control and lambasting the NVRA.26 voters on the current rolls will be deleted from the lists after One way that the NVRA has increased access to voter the 2002 election.30 “Inactive” voters, therefore, may be left registration has been by increasing the number of physical on such lists for as little as two and a half years before they sites where citizens may submit voter registration forms to are purged entirely from the rolls. Contrary to popular opinion, include motor vehicle agencies and state agencies adminis- this represents a decrease in the length of time a voter can tering services to the indigent, elderly, and disabled. The remain inactive before being deleted entirely from the rolls NVRA also requires state officials at these sites to inform in about half of the 40 states that utilized the purge for failure clients about voter registration opportunities. People who to vote prior to the enactment of the NVRA.31 Moreover, visit motor vehicle agencies, welfare offices, and the like the new requirements permit deletions from the rolls in eight more than once therefore have the opportunity to register states that did not purge for nonvoting before implementing to vote multiple times. Moreover, multiple registrations can the NVRA.32 In the 1999–2000 cycle, five of those states purged occur if a registrant submits updated information using a 1,888,795 names from their new inactive lists—names that new application form. Local election officials must spend could have remained on state and local voter registries prior time and resources verifying new registration applications to 1993.33 They removed an additional 719,761 voters from for duplication. In fact, a recent GAO report on election their active lists. In sum, the NVRA is responsible for signif- administration found that 99 percent of voting jurisdictions icantly tightening up, not loosening, list maintenance require- nationwide checked for multiple registrations.27 On the ments for deadwood in many states. other hand, other election officials told the GAO they sup- Another problem with the argument that an increase in ported the motor vehicle authorities’ policy of encouraging the number of inactive registered voters opens the door to citizens to reapply if they had any reason to believe they voter fraud is a misunderstanding of how states and localities might not be registered. manage those lists on election day. Only about half the states covered by the NVRA even allow inactive voters to vote on election day. When inactive voters are permitted to vote, it is

24 Securing the Vote: An Analysis of Election Fraud usually by affidavit or through the use of some form of pro- ality and raising concerns about voter fraud. None of the visional ballot subject to further verification of such voters’ federal courts hearing the challenges found the evidence of qualifications, which by no means guarantees a provisional fraud convincing or the concerns legitimate.35 Today, states vote will be counted. A number of high profile cases of voter reporting problems in maintaining accurate voter registra- fraud involving the manipulation of “deadwood” voter reg- tion lists complain mostly about the high cost of complying istration records, mostly through absentee ballot fraud, have with mailings under state implementation of the NVRA. In given critics’ arguments some weight. But mismanagement their responses to the most recent FEC inquiries about the of voter registration lists involving the erroneous removal of NVRA, no states raised the issue of voter fraud among their voters from active lists used at the polls is a more significant implementation problems. problem. It emerged in the Properly implemented and adequately funded, the NVRA 2000 presidential election helps guard against the possibility of voter fraud. The NVRA and was compounded by the requires the states to clean their voter registration rolls by failure of election officials to deleting voters who have moved out of the jurisdiction or provide opportunities for have died. It requires voters to sign their names attesting those voters to vote, as man- to their eligibility to vote under penalty of perjury, and dated by the NVRA’s fail- deportation for noncitizens. The NVRA does not prohibit safe provisions.34 (Under the states from requiring mail-in registrants to vote in person new federal election law, all the first time they vote, nor does it prohibit states from states must provide voters checking individuals’ identification prior to registration, as with the opportunity to cast some critics of the NVRA have alleged.36 Finally, the NVRA provisional ballots.) strengthens enforcement provisions against fraud.37 In its most recent report to Congress on the impact of the NVRA on election Voting By Mail administration in federal Mail-in voting is proving to be an increasingly popular elections, the Federal Elections Commission noted an method of voting in the United States. As a proportion of increasing effort by the states to maintain accurate voter total votes cast, the use of mail-in or absentee ballots doubled registration lists. While the NVRA permits states latitude between 1970 and 1990, and then doubled again over the in designing list maintenance programs that reflect local last decade, so that fully 14 percent of all ballots cast nation- conditions and needs, most of the 12 states reporting wide in 2000 were cast by absentee ballot.38 This represents improvements in list maintenance managed these improve- an increase of approximately 4.2 million absentee votes cast ments through upgraded statewide computer information over the previous presidential election. This increase in mail- systems. Improvements also came about through enhanced in voting has led to concerns about the opportunities that networking between localities supervising the registration exist for election fraud under such arrangements. Significant process and state agencies generating records related to fraud in the 1997 Miami mayoral race—perpetrated using voter list management—for example, death and criminal absentee ballots—helped to amplify these concerns. conviction records. A number of states are leading the way All states and the District of Columbia permit mail-in in the use of computer technology to clean the voter reg- absentee voting but differ on the rules that qualify regis- istration lists. Oklahoma now requires voters to provide the tered voters to vote absentee.39 With the exception of Maine last four digits of their social security number to help iden- and Wisconsin, all of the states in the midwestern, southern, tify duplicate registrations, and North Carolina has intro- and eastern half of the country require voters to provide a duced a barcode-scanning technology that automatically reason or excuse for why they cannot vote in person on elec- assigns voter status based on returned mail. tion day. All the rest of the states, save Texas, Utah, and A number of states initially resisted the implementation South Dakota, allow for no-excuse absentee voting. Where, of the NVRA by challenging the legislation’s constitution-

De-mos: A Network for Ideas & Action 25 As a proportion of total votes cast, the use of mail-in or absentee ballots doubled between 1970 and 1990, and then doubled again over the last decade. when, and how registered voters apply for absentee ballots determine whether applicants have previously applied for a differ across the states, with the eastern and southern states mail-in ballot for that election.41 Nearly half (45 percent) of generally more restrictive in their rules. all jurisdictions do not verify a voter’s signature on absentee The states also differ widely in the manner in which they ballots against signatures provided on voter registration process absentee ballot applications, such as in deadlines for forms. Seven states require that absentee ballots be nota- filing applications. And they differ in the level of assistance rized or signed in the presence of two witnesses,42 and 38 provided by election officials to absentee applicants. states require no third-party witnessing at all. Differences also exist across states in the manner in which incomplete, illegible or confusing applications are reviewed and handled. Some states aggressively pursue clarification Election Day Registration in order to qualify the application, and others fail even to Most states require voters to register as early as one month notify applicants when there are problems with their forms. before an election in which they wish to participate. However, A number of states, such as Oklahoma and Texas, require one state, North Dakota, has no voter registration at all, and that absentee ballots only be returned by mail; others, such another six states allow voters to register on election day: as New York, allow the voter to return the ballot in person. Idaho, Maine, Minnesota, New Hampshire, Wisconsin, and Still other states, such as California, Michigan, and Illinois, Wyoming. Each of the six states that use EDR experience allow a family member to return another’s absentee ballot significantly higher voter turnout than the national mean— on election day or, in California’s case, during the week before 10 percent higher on average. Political scientists who have the election. Variations in state policies continue to carry studied EDR assert that it has been a key factor in creating over to the manner in which ballots are counted once elec- higher turnout rates in these states, and they also estimate tion officials receive them. One-third of the states, for that nationwide implementation of EDR would increase par- example, require notarization or witnessing of voter signa- ticipation in presidential elections by 8.5 million voters.45 As tures on absentee ballots; others do not. Cut-off dates and reformers press to implement EDR in a wider variety of times for submitting absentee ballots differ, as does the time states, they face strong opposition because of the perceived frame for counting such ballots and the designation of local potential for fraud. However, according to election officials officials doing the counting.40 in the states with EDR, as well as other available evidence, The GAO’s survey of election officials found that while these concerns appear to be largely unfounded.46 most states and jurisdictions have laws and procedures for The GAO’s postelection survey of local election officials addressing the potential for fraud in mail-in absentee voting, found that some officials in states without EDR worried that some officials remain concerned that fraud still can be com- the elimination of the time between voter registration cut- mitted. They worry about someone other than the qualified off deadlines and election day would introduce fraud because voter voting in his or her place, multiple voting by an absentee officials would not be able to verify an applicant’s eligibility voter casting a ballot by mail and in person, and intimida- quickly enough. Indeed, EDR shifts the burden of the two- tion of an absentee voter casting his or her ballot at home, stage registration and voting process toward local election without the supervision of election officials. Overall, the officials and away from voters. But all of the states that prac- absentee mail-in ballot process is the feature most vulner- tice EDR have adopted administrative procedures that work; able to voter fraud within the decentralized, patchwork U.S. they all require citizens to verify their identification and res- electoral system, at least in theory. This is not to say that idence and have a variety of methods for preventing fraud. there is a lot of evidence of absentee ballot fraud but rather Acceptable I.D. differs among the states, ranging from driver’s that the potential for fraud is greatest in this area because of licenses and passports to leases and utility bills. a lack of uniformly strong security measures in place in all Some EDR states require picture identification, while states to prevent fraud. For example, according to the GAO others do not. In Maine, election day registrants must either survey, only two-thirds (64 percent) of voting jurisdictions show proof of identity and residence or cast a challenged check absentee ballot applications against their records to

26 Securing the Vote: An Analysis of Election Fraud ballot, which would be investigated in the case of a close who do register erroneously are sent a warning card informing election. Officials in most EDR states see active, ongoing them of the penalties they face if they repeat their mistake.49 involvement from administrators as a prerequisite to fraud- As a deterrent to fraud, election officials in EDR states free elections. In Minnesota, for example, officials verify the also publicize the stiff penalties that accompany a fraud residence of each new registrant with a nonforwardable post- conviction. In Maine, knowingly attempting to vote more card mailing, and after elections the counties record and val- than once for the same election is a felony punishable by idate all new registrations within thirty days.48 In both fines of up to $5,000 and up to five years of imprison- Minnesota and Wisconsin, election officials distinguish voter ment. Knowingly registering at more than one voting place fraud from erroneous registration, mistakes that can result without revealing the prior registration address is a felony from inattentive poll workers, or unintentional registration punishable by fines of up to $2,000 and up to one year of at the wrong polling place on the part of the applicant. Those imprisonment. The state provides each municipality with Oregon and All-Mail Balloting Oregon has been experimenting with voting by mail (VBM) for 20 years and in 2000 became the first state in the nation to conduct a presidential election entirely by mail. Available evidence indicates that voter fraud in Oregon is negligible, suggesting that with proper safeguards and ample time for voters to become accustomed to voting by mail, this method of casting ballots can increase participation while ensuring the integrity of the electoral process. Fraud charges and fraud detection in Oregon begin at the local level with the clerks of Oregon’s 36 county boards of elections. Oregon maintains a vigorous signature-matching process for qualifying mail-in ballots. Approximately two and a half weeks before election day, local registrars mail ballots, and instructions for returning them, to all registered voters in their jurisdictions. Ballots that are undeliverable are returned to the county elections office by the post office. Voters mark their ballots and place them in “secrecy” envelopes that are then sealed in return envelopes the voter signs. Ballots must be returned by mail to county election offices or delivered by 8 p.m. on election day to special secure drop boxes established by the county registrars. Teams of election workers verify each signature against computerized records of registered voters and pass to the county election clerk any ballots whose signatures do not match the files. Clerks review the problem ballots and take a number of actions to resolve the problem. If a signature is missing, the ballot is not counted. If a signature does not match the signature on file for the voter, the clerk may try to contact the voter to have him or her come into the office to re-sign the ballot in the presence of an election official. A signature for a voter who does not appear on the registration list is investigated by the clerk, who attempts to contact the voter, or, if the voter’s county can be determined, the clerk forwards the ballot to the appropriate county. If the clerk determines that a voter has voted more than once, the voter is contacted, and if fraud is suspected the case is forwarded to the secretary of state’s office, which then forwards cases to the attorney general for prosecution. A review of records maintained by the secretary of state’s office shows that over the past 10 years 1,001 cases of multiple voting and 1,056 cases of signature-matching problems have been referred to that office for investigation, out of tens of millions of votes cast. Of the combined 2,057 cases, only 15 have been referred to the Oregon attorney general for possible prosecution.43 Eight of the 15 cases are currently pending investigation; one person was acquitted; and the remaining six people were found guilty of voter fraud, contaminating approximately a dozen ballots. Elections officials in Oregon believe that VBM and the way it has been implemented over the years in Oregon helps prevent fraud better than most procedures used in polling place elections. Oregon’s rigorous signature-matching procedures are key to the state’s success with VBM. Overall, the Oregon secretary of state’s office argues that given the frequency of elections in Oregon, which is a referendum and initiative state, the state has the cleanest registration lists in the country. Because voters receive three or four unforwardable ballots a year, they are forced to keep their registration current and the county boards of elections are forced to clean the rolls.44

De-mos: A Network for Ideas & Action 27 Despite the lack of evidence that EDR increases the potential for fraud, fears of this kind helped to defeat EDR ballot initiatives in California and Colorado during the 2002 election.

“voting penalty posters” that must be posted in each voting Despite the lack of evidence that EDR increases the place and each voter registration place. In Minnesota, potential for fraud, fears of this kind helped to defeat EDR where penalties are similarly high, the state’s registration ballot initiatives in California and Colorado during the law requires county attorneys to give immediate attention 2002 election. In both states, opponents of the initiatives to fraud allegations. argued that eliminating the waiting period for verifying In many ways, election day registration may reduce voter eligibility would open up the voting process to inel- opportunities for fraud. Because EDR typically requires igible people and fraud schemes. Elections officials in voter identification and authentication in person, it actu- California worried that the state’s electoral administration ally makes voter registration fraud more difficult than a was not technologically advanced enough to instantaneously voter registration system that only requires a signature on check for duplicate registrations. In Colorado, EDR oppo- a mailed-in form (although this may change as the result nents warned that setting up the program would cost mil- of the new federal law). Also, most voter registrations in lions of dollars in new equipment and training, and worried EDR states occur at polling places and thus come through that election judges, wary of lawsuits, would avoid vig- the election system—as opposed to through agencies like orous questioning of the authenticity of voters’ identifica- the DMV that are mandated to offer registration. As a tion documents. Opponents persuaded the electorate that result, under EDR, voter registration is more tightly under making voting easier was not worth the potential price of the supervision of election officials. making cheating easier. EDR Under Fire in Wisconsin The election day registration system in Wisconsin came under significant attack following the 2000 election, amid claims of fraud in Milwaukee. On closer inspection, these claims have turned out to be groundless. A student at Marquette University told ABC News that he had registered under his own name and voted four times on election day, and a student survey found that 174 students claimed to have voted more than once. In addition, a Democratic campaign operative allegedly offered cigarettes to homeless people in exchange for their votes.50 Both allegations sparked investigations by the Milwaukee County Attorney’s Office. In the first case, the county attorney inspected the registration lists, voter lists, and ballots in the precincts in question. After intensive investigation, no cases of fraudulent voting were found at the precincts at Marquette University. Weeks after the story broke on ABC News, the student who reported the story recanted. He stated that he had invented the story to bring attention to the fact that voter fraud could occur, not that it had.51 The second case was more disturbing. A Democratic party activist from New York offered cigarettes to homeless people if they would vote. However, the case involved absentee ballots, not polling place registration.52 Apart from these cases, the Milwaukee County Attorney’s Office did find evidence of voter fraud involving election day registration in two cases in 2000. Both cases were individuals who were felons on parole and who voted even though they were not allowed to under state law. In neither case was the prosecution successful, because the parole boards failed to inform the individuals that they were not permitted to vote until the duration of their sentences had been served. According to the Milwaukee County and city election offices, the number of allegations of fraud in 2000 was unusual. The city and county of Milwaukee typically have one or two cases each election.53 Nevertheless, opponents of EDR in the Wisconsin have aggressively trumpeted the 2000 allegations in an effort to repeal the EDR law. To date, these efforts have been unsuccessful.

28 Securing the Vote: An Analysis of Election Fraud IV. Key Election Administration Issues and Fraud

The 2000 election generated wide-ranging debates about how to strengthen the administrative, procedural, and technological infrastructure of elections. Issues of fraud have surfaced frequently in these debates. This section explores questions related to voter identiﬁcation and fraud, as well issues of technical modernization and partisanship in election administration.

Fraud and Voter Identification The issue of identification requirements for registration and voting have become a con- tentious issue at both the state and national level. Those who favor more restrictive I.D. requirements argue that they are necessary to prevent voter fraud. Opponents counter that such procedures create discriminatory and potentially unconstitutional obstacles to the right to vote. The new federal election law, signed in October 2002 by President Bush, requires all voters to provide their driver’s license number or the last four digits of their social security number when registering. Voters who have neither will have a number assigned to them. It also requires first-time voters who registered by mail to attest to their identity when they arrive at the polls with a driver’s license, utility bill, or other proof of residence, including a bank statement, government check, paycheck, or other government document that shows the name and address of the voter. The NVRA allows the states to conduct identity checks the first time a person votes if that person has registered by mail. It also allows states to require a person who has registered by mail to vote in person the first time they vote (eight states do). Until now, I.D. has generally not been a mandatory aspect of voting and registration in the states. Only 11 states presently require proof of identity to vote by law, and generally acceptable forms of I.D. differ widely, from driver’s licenses to fishing licenses, leases, or utility bills.54 The most common form of identification used at the polls is a signature: Thirty- eight states and the District of Columbia require voters to sign the poll book in order

De-mos: A Network for Ideas & Action 29 Stiffer I.D. restrictions will likely disproportionately encumber low-income, disabled, and other minority group citizens as they seek to exercise their right to vote. to vote.55 Some states, for example, compare a voter’s sig- were illegally asked for I.D. at the polls.58 Stiffer I.D. restric- nature with one on file, others with the signature on a piece tions will likely disproportionately encumber low-income, of identification supplied by the voter. The states have widely disabled, and other minority group citizens as they seek to differing rules for identifying absentee voters and for voters exercise their right to vote. who show up to vote without any identification; some states give local poll workers, or other voters, the authority to vouch for the identity of a voter who shows up to vote without Technical Modernization the requisite identification. As with nearly all of the rules Voter fraud is best prevented today by accurate record for administering elections in the states, rules governing keeping on the part of election administrators. Accurate voter identification take many forms and range from lenient record keeping is greatly facilitated by computerization and to restrictive. However, bills calling for more restrictive I.D. centralization of voter lists. Unified voter databases, net- requirements have recently been introduced in a number worked to state agencies providing voter registration ser- of states and are gaining ground.56 vices to eligible citizens so that new registration records can There are potentially discriminatory consequences of be instantly processed, can help keep voter lists clean by pre- requiring specific forms of identification to register and vote. venting duplicate registration and by keeping address infor- For example, many low-income, elderly, disabled, urban, and mation current. Voter databases can be also cross-checked out-of-state student voters do not have driver’s licenses. As with other relevant records, such as death records, criminal some judicial decisions have found, requiring such people to convictions, and postal address records, to verify voter eli- purchase another form of photo I.D. in order to vote could gibility and eliminate “deadwood.” In addition, technology function as a poll tax—an unconstitutional abridgement of is increasingly available that can electronically record and the right to vote. Proof of residency through other docu- transmit signatures as part of voter registration records. ments, such as utility bills or leases, is also potentially dis- Currently, there is wide variation across states in the tech- criminatory, as racial and ethnic minorities who are nological sophistication for maintaining voter registration disproportionately poor are less likely than whites to have them. records.59 Ten states, Michigan being the largest, maintain (Indeed, many Americans live in domiciles as roommates, unified databases that permit information sharing and records spouses, or relatives where their name is not on the lease or management between state and local agencies. Thirteen on utility bills.) Those who work in the service industry or states maintain statewide lists compiled from local lists. perform domestic work and are paid in cash are less likely to Localities reserve responsibility for their own records, using have a government paycheck or other paycheck for proof of the statewide list to check for duplicates. In some states identity. And as advocates for the disabled point out, requiring localities can choose to use the statewide list as their own. photo identification makes it harder to vote absentee.57 Fourteen other states compile local lists but do not provide When first-time voters are required to vote in person, direct access to localities for verification of duplicate records. the disabled and wheelchair-bound are unduly burdened, These states perform the checks for duplicate records and as nearly 70 percent of the nation’s polling sites are not wheel- may also match their lists with other state records, and then chair accessible. Finally, voting rights advocates are con- notify localities of their findings. Finally, 13 states maintain cerned that a mandatory I.D. requirement might result in no statewide voter registration records at all. voter discrimination and harassment. According to the Asian Beginning with its first mandated reports to Congress American Legal Defense and Education Fund, during a on the implementation of the NVRA in the mid-1990s, the recent municipal election, one in six Asian Americans in FEC has recommended that states that have not yet done New York City, where only a signature is required to vote, so develop and implement statewide computerized voter registration databases; computerize all local election regis-

30 Securing the Vote: An Analysis of Election Fraud tration offices; and link their statewide computerized system, administrative arrangements and keep partisanship out of where feasible, with the computerized systems of the col- the process. Yet even in more centralized systems, effective lateral public agencies relevant to the NVRA (motor vehicle oversight can be difficult and there is considerable latitude offices, public assistance offices, etc.).60 The FEC’s recom- for discretionary actions by local board officials and the mendation, repeated in each of its biannual reports to influence of dominant politicians. Congress, has not gone unheeded, but meager resources The 2000 election in Florida vividly showed the perils of in the states for technological upgrades have served as a barrier such partisanship in a close race. In particular, major ques- to implementation. tions were raised about the fairness and propriety of local It is not easy to generalize about the costs involved in election officials in Seminole and Martin Counties, where bringing all states online.61 Costs vary across a wide of range elections officials gave Republican Party employees special of circumstances, including the distribution of responsibility opportunities to add information to incomplete absentee for administering elections between state and county gov- ballot forms. Questions were also raised about the partisan ernments, the state of the existing computer infrastructure ties of Secretary of State Katherine Harris, who was closely in the relevant state and local agencies, the level of sophis- connected to the Bush presidential campaign and who made tication desired in a statewide voter registration system, and critical decisions about purging Florida voter lists in ways how fast a state wants its new system operational. The FEC that disadvantaged Democrats. In addition, the image of estimates that costs to implement such systems over the past partisan local election officials presiding over hand vote two decades have ranged from less than $1 million to more recounts in Palm Beach and elsewhere during the 2000 than $8 million. Michigan’s database, the Qualified Voter election further underscored the problematic nature of par- File, a unified database considered one of the best systems tisanship in elections. in the county, cost the state $7.6 million to develop and In almost every state, final authority over election systems $3 million for annual maintenance.62 rests with state government—generally in the secretary of Help should be on the way. The new federal election reform state’s office. How those officials are chosen has important law would provide roughly $3.9 billion in federal funds for effects on the level of partisanship in elections. Thirty-six the upgrading of voting equipment and procedures and the secretaries of state are elected statewide in partisan elec- training of poll workers. The law would require the states tions. In Alaska, Hawaii, and Utah, the lieutenant governor to implement interactive computerized statewide voter reg- serves as the secretary of state. In Texas, the secretary of istration lists that are accessible to each state and local elec- state is appointed by the governor without legislative approval. tion official. However, while funds to implement reform The legislatures of Maine, New Hampshire, and Tennessee had been authorized as of this writing, these funds had not elect the secretary of state. In other ways, election officials yet been appropriated. at the county and state level are dependent on dominant politicians and parties.63 Partisanship in Election Administration Partisan control of election administration has historically created greater potential for election fraud. Partisan control of local election administration is much less of a problem now than when fraud prevention measures were first introduced a century ago, but it nevertheless has the potential to compromise elections. In very decentralized election systems, as in Florida, it can be even more difficult to monitor

De-mos: A Network for Ideas & Action 31

V. Best Practices in the States

As government ofﬁcials and reformers grapple with the challenge of maximally expanding registration and voting opportunities—while constraining opportunities for fraud—they can learn from procedures and infrastructure already in place in various states aimed at successfully achieving this balance.

Managing Voter Registration Records The best available means of keeping accurate, continually updated records of voter registration are through statewide, unified registration systems, where the state and all localities share the same database. As a result of the new federal election law, such systems will be required of all states. Statewide coordination has a number of advantages over locally controlled databases. By integrating all local lists, duplicates are easier to iden- tify and remove. States can more easily coordinate records with other state-held records, such as driver’s licenses. Ten states currently employ unified systems. They are Alaska, Delaware, Hawaii, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, South Carolina, and Virginia. Unified databases are not enough, however, to facilitate accurate registration and voting. States are much better served by systems designed to link together election agencies with those agencies relevant to NVRA provisions, so that new applications are processed and recorded without delay. Ideally, poll workers should have laptops so that they can resolve registration problems that arise on election day. Currently, only ten states have statewide registration systems that allow voter information to be automatically transferred online to a central statewide database and updated immediately in “real time.” They are Alabama, Alaska, Delaware, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Oklahoma, and South Carolina. Of these, the systems in Kentucky and Michigan are generally seen as among the best.

• Kentucky: From local terminals, county election ofﬁcials access a statewide database located in the statehouse, and state election ofﬁcials regularly update the database by comparing voter lists with lists of those deemed ineligible for reasons of death, mental

De-mos: A Network for Ideas & Action 33 The best available means of keeping accurate, continually updated records of voter registration are through statewide, unified registration systems, where the state and all localities share the same database.

database by comparing voter lists with lists of those deemed •Georgia: Voters must present an I.D. at the polls, including ineligible for reasons of death, mental incompetence, felony a driver’s license, a government-issued I.D., an employee or conviction, relocation, or voter inactivity. Local election offi- student I.D. card with photo, a weapons’ license, a pilot’s cials can update records and receive confirmation from state license, a military I.D., a birth certificate, a social security card, officials within a day. In the near future, they will be able to court records showing adoption, name, or sex change, or nat- access the database at the precincts on election day via the uralization documents. If the voter does not have I.D., he or Internet. she can sign an affidavit.

•Michigan: Michigan’s Qualified Voter System is also an exem- •Virginia: Voters must present a Virginia voter card, a driver’s plary structure for accurate and efficient records management. license, a social security card, a federal, state, or local govern- Michigan’s motor vehicle agencies are linked electronically to ment-issued I.D., or a photo I.D. issued by an employer in the electronic voter list, so new registrations are transmitted the course of regular business. Voters without I.D.s can sign there directly and automatically, reducing the chance of losing a statement under oath. Voters who registered by mail are registrations. The state matches its registration list against the required to vote in person the first time they vote. U.S. Postal Service National Change of Address records, death records, and felony records. Nonpartisan or Bipartisan Voter Identification Requirements Election Administration Reducing partisanship in election administration is an impor- In recent months, the issue of voter identification has been the tant step toward ensuring the integrity of elections. While par- subject of much legislative scrutiny, thanks to the I.D. require- tisanship in election administration is the norm in the majority ments mandated by the new federal election reform law, the Help of states, it varies in intensity. Some states have devised different America Vote Act (HAVA). HAVA imposes I.D. requirements on systems for choosing state election officers in ways that are either first-time voters who register by mail. Many fear that the new require- nonpartisan, or at least bipartisan. Among them are: ment will depress voter participation, particularly among low- income voters, people of color, voters with disabilities, young •Illinois: The Illinois State Board of Elections has eight bipar- voters, senior citizens, and others who are less likely to possess the tisan members, four appointed by the governor and four selected necessary documents. Given these concerns, states should look to by the governor from a list of nominees submitted by the reduce the burden on voters by adopting a broad and flexible highest-ranking official of the opposite political party. Members approach to identity and residence verification. The following serve staggered, four-year terms. The board provides a uniform states permit the use of a variety of I.D.s that voters are more likely manual of instructions for election judges; certifies ballots for to have. all federal, state, and multi-county offices; and serves as the electoral board for objections to petitions for federal, state, and • : Voters must present an I.D. at the polls, including a Alaska multi-county offices and statewide referenda. registration card, a driver’s license, a birth certificate, a pass- port, a hunting or fishing license, or others prescribedby regu- lation. The voter I.D. requirement is waived if an election official corroborates a voter’s identity.

•Connecticut: Voters must present an I.D. at the polls, including a social security card or other preprinted identification that includes name and either address, signature, or pho- tograph. Voters may sign an affirmation instead of presenting I.D.

34 Securing the Vote: An Analysis of Election Fraud • Kentucky: The State Board of Elections has six members, three from each of the two major parties, appointed for a four-year term by the governor. The secretary of state is chairman of the board and therefore the chief election ofﬁcial in the state. The board supervises voter registration, purgation of voters and the administration of election laws; supervises the county boards of election; prescribes voter registration forms; and furnishes county clerks with master lists of registered voters before each election.

• North Carolina: The State Board of Elections oversees administration of elections. Its five members are appointed by the governor, but its composition is bipartisan. The board issues and enforces rules and regulations binding on local officials; has power to remove local officials for fraud, neglect, or incompetence; prescribes form and content of ballots and other forms used in elections; investigates possible election irregularities; appoints members to county boards; approves all voting machines before use; and tabulates election returns, certifies the results, and sends the results to the secretary of state.

De-mos: A Network for Ideas & Action 35

VI. Policy Recommendations

The guardians of America’s election systems have two equally solemn responsibilities: on the one hand, to realize the promise of democracy and make voting as accessible as possible, and on the other hand, to ensure that elections are carried out with the utmost integrity and are not susceptible to malfeasant manipulation. This report suggests that election ofﬁ- cials are already doing a good job of protecting against fraud in the system, as it had traditionally been deﬁned. Yet while the incidence of fraud appears to be very low and to have little impact on election outcomes, many barriers to voting endure, and too much disenfranchisement occurs within an election system that is outdated, prone to error, and too partisan. Below, we build on the previous section on best practices and offer four core recommendations to help guarantee safe elections that are as open as possible.

• Upgrade Technology in the States. Computerized voter registration records and state-of-the art voting technology are critical components of election systems that both facilitate participation and reduce the potential for fraud. The new federal election law, which mandates the creation of statewide computerized registration systems and also aims to provide states with money to upgrade voting machines, will be an important step forward if it is fully funded and effectively implemented. It is especially important that new state-of-the-art registration systems allow for interagency networking (for prompt and proper transmission of registration information under NVRA) and local poll access to systems (through laptops or other means). We also endorse the CalTech/MIT Voting Technology Project recommendation for the establishment of a National Elections Research Lab that would continue to foster the development of better voting equipment and voting systems, so that as technological advances take place they can be harnessed to help provide systems that are increasingly secure and accessible.

• I.D. Requirements That Do Not Burden Voters. The new federal election law places undue burdens on voters to prove their identity at the polls. We recommend modifying the law in certain respects and following several guidelines: (1) expanding the list of

De-mos: A Network for Ideas & Action 37 At the very least, states and counties should strive to remove ambiguity and conﬂicts of interest from all aspects of election laws, from registration to postelection procedures.

acceptable identifying documents; (2) allowing state or local ofﬁcials discretion to incorporate or expand forms of identiﬁcation currently in use; (3) stipulating that all provisions should be uniformly applied; and (4) enforcing a voter’s bill of rights that outlines acceptable forms of I.D.

• Reduce Partisanship in Election Administration. We recommend that state legislatures explore ways to make election administration free of partisan control. At the very least, states and counties should strive to remove ambiguity and conflicts of interest from all aspects of election laws, from registration to postelection procedures. The National Association of Counties (NACo) and the National Association of County Recorders, Election Officials, and Clerks (NACRC) have recommended pro- fessionalization as a way to curtail partisanship.64 Regular training and exchanges with elections administrators from other jurisdictions may increase officials’ commitment to the integrity of the democratic process itself, as opposed to party loyalty.

• Strengthen Enforcement. The federal and state criminal penalties for election fraud are signiﬁcant and should serve as a powerful deterrent against fraud. However, this will not be the case if laws are poorly enforced, or enforced unevenly. All states should ensure adequate funding and authority for ofﬁces responsible for detecting and prosecuting fraud. In addition, all states should track allegations of election fraud, as well as the outcomes of criminal investigations, and make this data available to the public.

• Establish Election Day Registration. As some elections experts have pointed out, EDR may allow better forms of fraud prevention than other systems.65 Under NVRA, election ofﬁcials have lost some measure of control over registration. Most registrations now come through departments of motor vehicles, through registration drives, and through the mail. EDR requires voter iden- tiﬁcation and authorization in person before a trained election worker, which should reduce the opportunity for registration error or fraud.

38 Securing the Vote: An Analysis of Election Fraud Appendix Major Recent Cases of Alleged Election Fraud

A. The 1997 Primary Mayoral Election, Miami, Florida Perhaps the best-known contemporary case of uncontroverted absentee ballot fraud is the disputed 1997 primary mayoral election in Miami, Florida.66 Running for reelection as mayor, Joe Carollo received 51.4 percent of the ballots cast at the polls, while his oppo- nent, former mayor Xavier Suarez, received 61.5 percent of the absentee ballots, giving Suarez a slim lead (155 votes) over Carollo in total balloting. Because neither candidate received more than 50 percent of the vote, a run-off election was held, and Suarez nar- rowly won both the precinct and absentee ballots.67 Immediately after the November 4 election, Carollo challenged the results, claiming fraud in the absentee ballot vote that swung the election to Suarez, thus denying Carollo the majority support he received at the polls and forcing him into a run-off. A week after the election the Florida Department of Law Enforcement arrested two Suarez sup- porters for buying absentee ballots and falsely witnessing absentee ballots. The day after he lost the run-off election to Suarez, Carollo petitioned the Circuit Court for the Eleventh Judicial Circuit of Florida to overturn the results of the November 4 election on the grounds of voter fraud. The trial was held in February 1998. For two and a half weeks, the trial court heard evidence and read depositions from 87 witnesses and examined 195 exhibits.68 Its March 3 decision noted “a pattern of fraudulent, intentional and criminal conduct” in the extensive abuse of absentee ballot laws.69 An expert documents examiner testiﬁed that 225 absentee ballots cast had forged signatures; there was evidence of 14 stolen ballots and 140 improperly witnessed ballots. Another 480 ballots were procured or witnessed by 29 “ballot brokers,” 27 of whom invoked their Fifth Amendment privilege against self-incrimination instead of testifying at trial. One such ballot broker was 92-year-old Alberto Russi, a campaign volunteer for Humberto Hernandez, a Suarez ally on the ﬁve-member City Commission. Within days of the November 4 election, Russi was arrested and charged with three counts of election fraud. Police traced Russi to the absentee ballot of a dead man whose ballot he witnessed. When police searched

De-mos: A Network for Ideas & Action 39 In its zeal to address the embarrassing behavior of politicians in Miami, the Republican-controlled legislature passed a law that paved the way for one of the more underreported scandals of the 2000 election in Florida.

Russi’s home they seized 75 absentee ballots already filled The 1997 Miami mayor’s race presents one of the most out and intended for the November 13 run-off, many of egregious cases of election fraud in recent memory. News which were addressed to Russi’s home in the names of other coverage of the fraud scheme and trial was extensive and voters. A separate grand jury, convened to investigate the national and local leaders and residents loudly bemoaned the fraud allegations and make recommendations for improve- further tarnishing of the city’s image as one steeped in polit- ments in the absentee ballot process, found that absentee ical corruption. The state legislature acted quickly to pass a ballots were stolen from mailboxes, that “unscrupulous $4 million election law reform package to root out voter individuals” had secured ballots for people under the guise fraud. But the law did much more than that. In its zeal to of “helping the voter,” and that voters had been coerced address the embarrassing behavior of politicians in Miami, into voting for particular candidates in return for past favors the Republican-controlled legislature passed a law that paved done for them.70 the way for one of the more underreported scandals of the At the center of what the trial court subsequently found 2000 election in Florida: the massive disenfranchisement of to be “a massive, well-conceived and well-orchestrated Florida voters—most of them African American—whose absentee ballot voter fraud scheme” were a large number names erroneously appeared on felony lists.73 of absentee ballots—nearly 70 percent of the total—cast from In May 1998 the legislature added Section 98.0975 to Little Havana. Little Havana voters reinstalled Commissioner Title IX, Chapter 98 of Florida’s statutes. Section 98.0975 Hernandez, the embattled Suarez ally who won reelection required the Division of Elections in the secretary of state’s to the City Commission by a large majority after being office to contract with a private company to compare the removed from office by the governor following a 23-count central voter file with databases of persons deceased, those indictment for bank fraud and money laundering.71 An with felony convictions, and those adjudicated mentally expert in statistical analysis testified at trial that the large incompetent and to provide lists of matching names to the number of absentee ballots from Little Havana were a sta- division. The division was required to provide the information tistical “outlier,” the Little Havana absentee ballot rate an to the county supervisors of elections who were to under- “aberrant case” so unlikely that it was “literally off the [sta- take their own verification process on local voter registra- tistical probability] charts.” tion databases. Florida was the only state in the United The trial judge, Thomas S. Wilson Jr., concluded that States to require its local election officials to verify their “the evidence shows a pattern of fraudulent, intentional voter rolls using data processed by a private firm.74 and criminal conduct that resulted in such an extensive abuse of the absentee ballot laws that it can fairly be said that the intent of these laws was totally frustrated.... This B. The 1996 Sanchez/Dornan Contest scheme to defraud, literally and figuratively stole the ballot for the U.S. House of Representatives, from the hands of every honest voter in the city of Miami.” 72 Orange County, California Judge Wilson overturned the results of the November 4 election and ordered a new election, but his remedy was Orange County, California, is the fourth largest county in overturned on appeal. The appellate court affirmed the the United States, with 2.8 million people, more than one- finding of fraud but voided the remedy of a new election quarter of them Latino. The 46th Congressional district is and remanded the case to the lower court with instructions nestled in the heart of Orange County and includes centers to enter a final judgment that voided all of the absentee ballots, of Latino concentration, Santa Ana, the county seat, and determining the outcome of the election by the machine most of Garden Grove and Anaheim, giving the 46th dis- total alone. This decision took victory out of Xavier Suarez’s trict a population that is nearly two-thirds Latino. Vast hands and gave it to Miami’s new mayor, Joe Carollo.

40 Securing the Vote: An Analysis of Election Fraud growth and demographic change, along with careful redis- about 3,000 ballots were still left to tally, the Associated tricting by Democrats in California’s state legislature, have Press called the election for Sanchez, who had moved into facilitated political change in Orange County. Orange County the lead with a 929-vote margin. As the count proceeded, was once a Republican stronghold, a core constituency for Dornan repeatedly raised the issue of “noncitizen” voter the Republican party in presidential elections because it fraud and vowed to take his reelection fight to the floor of could swing California to the party. As late as 1988, voters the House of Representatives if he lost. He added that his in the 46th district gave 62 percent of their votes to George Republican colleagues were looking for a case to use in chal- Bush. By 2000, however, a 24 percent Republican margin lenging the recently implemented National Voter in presidential elections had been replaced by a 12 percent Registration Act, signaling the likely entry of national polit- Democratic margin when Al Gore won the 46th with 54 ical forces into the fray.75 Dornan specifically charged that a well-known Latino rights group and the Democratic Party signed up illegal voters in a drive he argued may have led to “the first case in history where a congressional election was decided by noncitizens.” 76 His lawyer later called the case “what we think is the single largest example of voter fraud in a federal election in the last 50 years, and, yes, maybe in this century.” 77 On November 22, 1996, the Orange County Registrar of Voters certified Loretta Sanchez the winner by 984 votes,78 and a 14-month battle to deny Sanchez a seat in the House was joined. State electoral and law enforcement agencies were the first to open investigations into the alleged election irregularities. Then, on December 26, 1996, Dornan percent, to 42 percent for George W. Bush. The advancing filed a three-page Notice of Electoral Contest in the House ability of new immigrant and Latino voters to define Orange of Representatives requesting an investigation of the elec- County politics and the transformation in party dominance tion. This was within keeping of his prerogative and the con- toward the Democrats set the stage for an explosive case of stitutional authority of the House under Article 1, Section alleged voter fraud in 1996. 5, Clause 1, which provides that each House of Congress The contested election between the nine-term Republican shall be the judge of the “elections, returns and qualifica- incumbent Robert K. Dornan and a little-known business- tions” of its members. Under the rules of the FCEA, the woman named Loretta Sanchez involved a blizzard of alle- contest is first heard by the Committee on House Oversight, gations of registration fraud, noncitizen and illegal immigrant which conducts its own investigation, and then by the whole voting, double voting, voting from nonresidential addresses, House, which disposes of the contest, by resolution or illegal inducements to register and vote, voter intimidation, majority vote. In the 105th Congress, the eight-member ballot box tampering and absentee ballot fraud, all under committee was chaired by Rep. William M. Thomas, a the canopy of a bitter and protracted partisan battle that Republican from Bakersfield, California, and dominated quickly bled into national politics. 5-to-3 by Republican members. Thomas created a three-person One day after the November 5, 1996, election, Dornan task force comprised of Rep. Vernon Ehlers (R-Mich.) and led Sanchez by 233 votes, but 12,000 absentee and pro- Rep. Robert Ney (R-Ohio), and, later, Rep. Steny Hoyer visional ballots had yet to be counted. A week later, when (D-Md.) to conduct the investigation and recommend a

De-mos: A Network for Ideas & Action 41 The Dornan-Sanchez electoral dispute fits squarely in what political scientists Benjamin Ginsberg and Martin Shefter call “politics by other means.” course action to the full committee. Along with the Orange contemporary St. Louis case is a classic case of the conflict County D.A. and secretary of state investigations, the between forces promoting expanded access to the franchise House committee’s investigation took a year to complete and those that would contain them. and produced, in the end, a disputed finding of fraud that African-American leaders became concerned that the was too insubstantial to convince the Republican domi- removal of more than 30,000 names from the registration nated House to upset or reverse Sanchez’s victory.79 On rolls to an “inactive” list in St. Louis during the summer February 12, 1998, the House voted 378-33 to dismiss and fall before the election would create problems at the Dornan’s contest. polls on election day. State Senator William Lacy Clay Jr., The Dornan-Sanchez electoral dispute fits squarely in a candidate for a seat in the U.S. House of Representatives, what political scientists Benjamin Ginsberg and Martin gave a speech the day before the election in which he warned Shefter call “politics by other means.” Politics by other that if legal voters were prohibited from voting at the polls means involve the use of legal strategies and the courts, rev- because of inaccurate registration records, lawsuits would elation, prosecution and investigation, and the media to be brought to keep the polls open past their legal closing win.80 The fraud allegations and subsequent 14-month inves- time of 7 p.m.85 In fact, that is exactly what happened. Late tigations by state, county, and federal government agencies afternoon on election day, Lacy Clay’s campaign, the Gore- cost American taxpayers well over $1.4 million.81 And in Lieberman campaign, and the Missouri State Democratic the end, very little voter fraud was convincingly substanti- Committee filed suit in St. Louis City Circuit Court to keep ated. On April 29, 1998, California’s secretary of state the polls open until 10 p.m. A sympathetic judge issued an announced that the people identified by the task force as order to extend voting hours, but the Missouri Court of illegal, noncitizen voters in the 46th congressional district Appeals overruled her. The polls in St. Louis shut down at election of 1996 would not be prosecuted for voter fraud, 7:45 p.m., with only an estimated 100 votes cast after the the secretary deciding that they had registered in error and official 7 p.m. poll closing time. not from criminal intent.82 As expected, the Democrats did very well in St. Louis, a heavily Democratic city, but they also did well statewide, electing a Democrat to the U.S. Senate and as governor. C. The 2000 Election, St. Louis, Missouri Within two days of the election, U.S. Senator Bond called Like most big cities, St. Louis has had its share of election for a federal investigation of voting in St. Louis, hinting at fraud.83 In the wake of the 2000 election, allegations of a conspiracy behind the Democrats’ efforts to extend polling voter fraud in St. Louis were raised that included illegal reg- place hours. “What I saw and heard on Tuesday night is an istration; voting by deceased people, felons, and people outrage,” he said, adding that the St. Louis Election Board whose addresses appear to be vacant lots; multiple voting; and the Democratic Party should be investigated for “orches- and unqualified election judges permitting unqualified voters trat[ing] a concerted scheme to deny all Missouri voters a to cast illegal ballots. All the facts are not yet in, but it valid count by keeping the polls open.” 86 appears that claims of a vast conspiracy on the part of the Postelection investigations by the newly elected Democrats to undertake “a major criminal enterprise designed Republican secretary of state, Matt Blunt, and the St. Louis to defraud voters” are strongly exaggerated.84 Post-Dispatch suggest a marginal amount of voter fraud The St. Louis case has gained national notoriety beyond may have been committed in 2000. But most of the initial what the available evidence of voter fraud would suggest, charges about criminal conspiracies and the defrauding of because the partisan conflict between a senior Missouri Missouri voters have been shown to be overblown. For Republican senator and a newly elected St. Louis Democratic example, the newly elected Republican circuit attorney, representative underlying it has erupted in congressional hear- Jennifer Joyce, convened a St. Louis grand jury to inves- ings and other public venues, giving the story a wider national tigate fraudulent voter registration cards delivered to the audience than it would have had otherwise. As such, the city board of elections on the last day of the voter regis-

42 Securing the Vote: An Analysis of Election Fraud tration period; three months later, the grand jury disbanded without issuing any indictments, though the case presum- ably is being investigated now by a federal grand jury looking into all the fraud issues. According to press reports, a third of the more than 3,000 cards under suspicion were clearly fraudulent—they appeared to be completed in the same handwriting and included at least three deceased aldermen, the deceased mother of a sitting alderman, a former deputy mayor, and a dog named Ritzy Mekler.87 A number of these registrations, and then, upon further research, hundreds more, listed addresses that the board said were vacant lots. Bond and others jumped on this information to further fuel their fraud charges. The secretary of state’s probe significantly reduced the number of vacant lot addresses to 79 voters, and subsequent investigations a year later by reporters at the Post-Dispatch dis- covered that “dozens of St. Louis voters are being wrongly accused of casting ballots from fraudulent addresses” in the 2000 election. The Post-Dispatch surveyed 1,000 suppos- edly vacant lots and found that 704 of them had buildings on them, some of them more than 50 years old.88 Errors in the city’s property records and methods for classifying vacant a multi-parcel address if only one of the parcels at the address is vacant account for the mistakes in the voter records. With no indictments in fraudulent voter registration and the problem of vacant lot addresses solved, Bond and Blunt focused on court orders permitting 1,233 people to vote. The court orders were issued by St. Louis City and St. Louis County election judges for reasons Blunt argued do not conform to Missouri law. Most of the court orders appeared to be granted to people who acknowledged that they had failed to register by the October 11 deadline, although judges interviewed by the St. Louis Post-Dispatch said that they believed their court orders complied with state laws. St. Louis County judge Robert S. Cohen said that election officials first screened voters who believed they were eligible to vote but who were not on voter registration lists; voters then had to wait in long lines to have their cases reviewed by an election judge.89 At this time, the alleged voter fraud scandal in St. Louis looks more like a case of managerial ineptitude and under- funding, and poor implementation of NVRA on the part of St. Louis and Missouri election officials.90

De-mos: A Network for Ideas & Action 43

Notes

1. Juliet Eilperin, “Voter Registrations Are Probed; In S.D., 11. Elizabeth Simson, Justice Denied: How Felony Irregularities Cloud Democrats’ Outreach to Indians,” The Disenfranchisement Laws Undermine American Democracy, Washington Post, October 24, 2002: A9. Americans for Democratic Action Education Fund, March 2002. 2. Kevin Fagan and Mark Simon, “Election-Day Registration Loses; Opponents Said Prop. 52 Would Have Opened Door 12. One critic of the NVRA has suggested in recent testimony to Fraud,” San Francisco Chronicle, November 6, 2002: A5. before the Senate Committee on Governmental Affairs that the lack of an evidentiary record of voter fraud prosecutions 3. See for example: Voting: What Is, What Could Be, Caltech/MIT should not be taken as indicative of a lack of voter fraud. This Voting Technology Project, July 2001; Democratic assumes that only the states can pursue fraud claims in court, Investigative Staff, House Judiciary Committee, How to Make which is not the case. See the testimony of Deborah Phillips, a Million Votes Disappear: Electoral Sleight of Hand in the 2000 founder and chair of the Voting Integrity Project, who asserts Presidential Election (U.S. Congress, House Committee on without evidence that “Prosecutors do not like election fraud the Judiciary, August 20, 2001). cases because they take precious resources from strained 4. Dayna Cunningham, “Who Are to Be Electors? A Reﬂection budgets needed for more serious crimes.” U.S. Congress, on the History of Voter Registration in the U.S.,” Yale Law Senate Committee on Governmental Affairs, Hearing on and Policy Review 9(2) (1991): 383. Election Administration Reform, 107th Cong., 2nd sess. (May 3, 2001). 5. Ibid., 384, citing Joseph P. Harris, Election Administration in the United States (Washington, D.C.: The Brookings 13. Section 11(b). See below for a discussion of the NVRA and Institution, 1934); Frances Fox Piven and Richard A. Cloward, fraud. Why Americans Don’t Vote and Why Politicians Want It That 14. United States Department of Justice, Criminal Division, Way (Boston: Beacon Press, 2000): 25–6, 91–2. Public Integrity Section, Federal Prosecution of Election 6. R. Michael Alvarez, “How Widespread is Voting Fraud,” Offenses, 21. Unpublished paper, September 2002. The paper analyzes 15. Ibid., 22 (underlined in original). data provided by the California Secretary of State’s Election Fraud Investigation Unit. 16. 18 U.S.C., Section 241 (1988); see also Richard Craswell, “Comments: Federal Prosecution for Local Vote Fraud Under 7. The Illegal Immigration Reform and Immigrant Responsibility Section 241 of the Federal Criminal Code,” University of Act of 1996 (P.L. 104-208), perhaps the most radical reform Chicago Law Review 43 (1976), 542–572. of U.S. immigrations laws ever, makes it much easier to deport otherwise lawful noncitizens for illegal voting in federal elec- 17. See United States v. Daugherty, 952 F.2d 969, 971 (8th Cir. tions (see Title II). 1991); United States v. Saenz, 747 F.2d 930, 935 (5th Cir. 1984); United States v. Canales, 744 F.2d 413, 416 (5th Cir. 8. U.S. General Accounting Office, Elections: The Scope of 1984). Congressional Authority in Election Administration, Report to the Congress (March 2001), GAO-01-470. 18. Prepared Remarks of Attorney General John Ashcroft, Voting Integrity Symposium, U.S. Department of Justice, Washington, 9. Ibid., 4–7. D.C., October 8, 2002 (http://www.usdoj.gov:80/ag/ 10. Ibid., 11. speeches/2002/100802ballotintegrity.htm). 19. Ibid.

De-mos: A Network for Ideas & Action 45 20. William Walker, “Deeply Divided America Heads to the 27. U.S. General Accounting Office, Elections: Perspectives on Polls,” Toronto Star, November 5, 2002: A1. Activities and Challenges Across the Nation, Report to Congressional Requesters (October 2001), GAO-02-3: 75. 21. Chet Brokaw, “Voting Claims Still Under Investigation,” Yankton Press and Dakotan On the Web, December 7, 28. Federal Elections Commission, The Impact of the National 2002 (http://www.yankton.net/stories/120702/ Voter Registration Act of 1993 on the Administration of new_20021207027.shtml). Elections for Federal Office, 1999-2000, 22 and Table 1. 22. U.S. Congress, Committee on House Administration, 29. According to the U.S. Census Bureau, nearly one in five National Voter Registration Act of 1993, 103rd Cong. 1st Americans of voting age moves annually. See Jason Schachter, sess., H. Rept. 103-9 (February 2, 1993): 27. Officials in “Geographical Mobility: Population Characteristics, March those states were concerned that the multiple registration 1999 to March 2000,” Current Population Reports, U.S. sites required by the law would result in duplicate registra- Department of Commerce, Economics and Statistics tions, and that the costs of maintaining the quality of voter Administration, U.S. Census Bureau (May 2001). rolls would be prohibitive. At least six states sued to block 30. Federal Elections Commission, The Impact of the National implementation of the law. The states included California, Voter Registration Act of 1993 on the Administration of Illinois, Louisiana, Michigan, South Carolina, and Virginia. Elections for Federal Office, 1999–2000: 22. See Jonathan E. Davis, “Comment: The National Voter Registration Act of 1993: Debunking States’ Rights Resistance 31. Steve Barber et al., “The Purging of Empowerment: Voter and the Pretense of Voter Fraud,” Temple Political and Civil Purge Laws and the Voting Rights Act,” Harvard Civil Rights– Rights Law Review 6 (Fall 1996-Spring 1997), 117, n20. Civil Liberties Law Review 23 (1988): 499 and Appendix A. The other states purging for failure to vote did so on an accel- 23. U.S. Congress, Senate Committee on Governmental Affairs, erated schedule, purging registered voters after two years of Hearing on Federal Election Practices and Procedures, Part inactivity or for failure to vote in a single election. I, 107th Cong., 2nd sess. (May 3, 2001) (testimony of Ralph O. Neas). 32. Those states are Alabama, Connecticut, Kentucky, Maine, Massachusetts, Missouri, Nebraska, and Texas. 24. Christopher S. “Kit” Bond, “‘Motor Voter’ Out of Control,” Washington Post (June 27, 2001): A25. This case is discussed 33. Federal Elections Commission, The Impact of the National below. According to Deborah M. Phillips of the Voting Integrity Voter Registration Act of 1993 on the Administration of Project, a national organization concerned about voter fraud, Elections for Federal Office, 1999–2000, Table 3. Kentucky, and a critic of NVRA, “the National Voter Registration Act Maine, and Nebraska have yet to delete any names from their has tied the hands of election directors to protect the rights inactive lists. of legitimate voters from the dilution of vote fraud.” U.S. 34. These provisions apply to voters assigned to inactive lists for Congress, Senate Committee on Rules and Administration, failure to respond to notices asking for address confirmation, Hearing on Election Reform, 107th Cong., 2nd sess. (March and are meant to secure the right of these voters to vote as 14, 2001) (testimony of Deborah M. Phillips). long as they are eligible. While NVRA does not specifically 25. U.S. Congress, Senate Committee on Rules and require states to provide provisional ballots to voters dis- Administration, Hearing on Election Reform (testimony of puting their denial to vote, the House Report on the Act rec- John Samples). At the same hearing, Todd F. Gaziano, Senior ommended “it would be appropriate, and in compliance with Fellow in Legal Studies and director of the Center for Legal the requirements of this Act, to require that such a person and Judicial Studies at the Heritage Foundation, testified vote by some form of provisional ballot.” See U.S. Congress, that “Regardless of the intent of the Motor Voter law, it has Committee on House Administration, National Voter helped create the most inaccurate voting rolls in our history. Registration Act of 1993, 103rd Cong. 1st sess., H. Rept. Citizens are registered in multiple jurisdictions at the same 103-9 (February 2, 1993): Section 8. Moreover, a number time, and very few states have effective procedures to ensure of analyses of the 2000 elections have concluded that reforms that those registered even are citizens...you can almost guar- should seek to expand the use of provisional balloting given antee that illegal voting may provide the margin of victory the documented level of error in list management contributing in a close contest.” to an estimated 3 million eligible voters being denied their right to vote. These numbers are drawn from the U.S. Census 26. See The Wall Street Journal, “Blind To Voter Fraud” (March Bureau Current Population Survey’s estimate that 7.4 percent 2, 2001): 10; “The Voter Fraud Iceberg” (March 12, 2001): of the 40 million nonvoters in 2000 did not vote due to reg- 22; “Manufacturing Votes” (May 8, 2001): 26; and “Too istration problems. Easy To Steal” (December 11, 2001): 18.

46 Securing the Vote: An Analysis of Election Fraud 35. See ACORN v. Miller, 129 F.3d 833 (6th Cir. 1997); ACORN 44. Those states are Alaska, Alabama, Louisiana, Missouri, North v. Edgar, 56 F.3d 791 (7th Cir. 1995); Voting Rights Coalition Carolina, Oklahoma, and Rhode Island. An election for chief v. Wilson, 60 F.3d 1411 (9th Cir. 1995); Condon v. Reno, judge of the Alabama Supreme Court was recently over- 913 F. Supp. 946 (D.S.C. 1995); and Jonathan E. Davis, turned on a technical violation of the law after an 11-month “The National Voter Registration Act of 1993: Debunking court battle. A number of absentee ballots larger than the States’ Rights Resistance and the Pretense of Voter Fraud,” margin of victory for the presumed winner were thrown out Temple Political & Civil Rights Law Review 6 (1997): n20 by a federal court because they were unwitnessed. See, Lori at 119, citing Human Serve and ACORN, “Legal Obstructions A. Tarle, “Comment: Statutory Interpretation and the Alabama to the Implementation of the National Voter Registration Absentee Ballot Controversy,” Cumberland Law Review 26 Act Including Constitutional Challenges: An Update,” (1995-1996): 197+. (September 1995) at 2–8. 45. Mark J. Fenster, “The Impact of Allowing Day of Registration 36. U.S. Congress, Senate Committee on Governmental Affairs, Voting on Turnout in U.S. Elections from 1960 to 1992,” Hearing on Federal Election Practices and Procedures, Part American Politics Quarterly, 22(1): 84; Benjamin Highton, 2, 107th Cong., 2nd sess., (May 9, 2001) (testimony of Hans “Easy Registration and Voter Turnout,” Journal of Politics, A. von Spakovsky). 59: 565–75; Craig Leonard Brians and Bernard Grofman, “Election Day Registration’s Effect on U.S. Voter Turnout,” 37. U.S. General Accounting Office, Elections: Perspectives on Social Science Quarterly 82(1): 171–183. Activities and Challenges Across the Nation: 22. 46. National Conference of State Legislatures, Voting in America: 38. Ibid; see also, J. Eric Oliver, “The Effects of Eligibility Final Report of the NCSL Elections Reform Task Force (July Restrictions and Party Activity on Absentee Voting and Overall 2001), http://www.ncsl.org/programs/press/2001/ Turnout,” American Journal of Political Science 40(2) (May electref0801.htm. 1996): 498–513. 47. U.S. General Accounting Office, Elections: Perspectives on 39. Thirty-nine states and the District of Columbia also permit Activities and Challenges Across the Nation: 71. in-person absentee or early voting. 48. Prepared text by Joan Growe for the panel “Election Day 40. Poll workers are given the responsibility of counting ballots Registration in Practice,” Symposium on Election Day in Alabama; in Florida, New Jersey, Oklahoma, and Maryland, Registration, Brennan Center for Justice, New York City, county election boards count absentee ballots; an array of November 30, 2001. local judges are designated to count absentee ballots in Colorado, Minnesota, Ohio, and Vermont; finally, special 49. R. Michael Alvarez and Stephen Ansolabehere, Expanding absentee ballot committees or boards are set up to count the Vote: Election Day Registration in California, De-mos, ballots in North Dakota, Montana, Nevada, and Texas. March 2002, 22. 41. U.S. General Accounting Office, Elections: Perspectives on 50. Andrew Nieland, “In Milwaukee Activists Use New Tactics Activities and Challenges Across the Nation: 129. to Help Boost Voter Registration, Turnout,” The Wall Street Journal Interactive Edition, December 18, 2000, 42. Upon investigation it turned out that the vast majority of the http://interactive.wsj.com/archive/retrieve.cgi?id= remaining cases were cases of voter error. The secretary of SB977098086874819675.djm. Nieland offers the following state’s Office sends letters to voters committing mistakes observation about EDR and fraud by Milwaukee Mayor admonishing them of the rules. (E-mail correspondence to John Norquist: “To rig any significant number of ballots the author from Norma Buckno of the Oregon Secretary of would just be an unimaginable pain in the butt.” State’s Office, dated February 14, 2002. Data were compiled by Ms. Buckno.) 51. A series of articles in the Milwaukee Journal Sentinel covered the case. See David Doege, “No Evidence Found of Multiple 43. Phone interview by author with John Lindback, Voting: McCann concludes students misled Marquette news- Elections Division, Oregon Secretary of State’s Office (February paper,” http://www.jsonline.com/news/metro/dec00/ 21, 2002). vote21122000a.asp. 52. “Cigarette case involves 15 to 25,” Milwaukee Journal Sentinel On Line, November 14, 2000. http://www.jsonline.com/ news/metro/nov00/smokes15111400a.asp.

De-mos: A Network for Ideas & Action 47 53. Interview with Mike Mahoney, assistant attorney, Milwaukee 66. The City of Miami is not to be confused with Miami-Dade County, February 6, 2002. County government. Approximately 365,000 people live in the City of Miami, one of 30 municipal jurisdictions within 54. The states are Alaska, Connecticut, Delaware, Florida, Georgia, Miami-Dade County where consolidated government rep- Kentucky, Louisiana, Missouri, South Carolina, Texas, and resents the larger “Miami” community and performs most Virginia. See the Constitution Project, Election Reform of the functions local government. Briefing: Voter Identification (April, 2002); and U.S. General Accounting Office, Elections: Perspectives on Activities and 67. Suarez received 23,598 votes or 53.2 percent to Carollo’s Challenges Across the Nation: 188–90. 20,739 votes (46.8 percent). See “Former Mayor Wins an Upset in Miami Ballot,” The New York Times (November 14, 55. U.S. General Accounting Office, Elections: Perspectives on 1997): A30. Activities and Challenges Across the Nation: 189. 68. William T. McCauley, “Florida Absentee Voter Fraud: 56. “Spotlight: Voter Identification Requirements,” Democracy Fashioning an Appropriate Judicial Remedy,” University of Dispatches, Number 15 (February 15, 2002), De-mos. Miami Law Review 54 (2000): 627. 57. American Association of People With Disabilities, “Kill the 69. In re Matter of Protest of Election Returns and Absentee Ballots Senate Election Reform Bill,” http://www.aapd-dc.org/ in the November 4, 1997, Elections for the City of Miami, docs/votekill.html. Dade County, Fla., No. 97-25596 CA 09 (Fla.. Dade County 58. “Groups Protest Senate Bill for Voter ID Checks; Say Will Ct. March 4, 1998). Make Many New Yorkers ‘Second Class Voters’” News release, 70. “‘Outright Fraud’ Found in Miami Mayoral Elections,” The the Citywide Coalition for Voter Participation, (April 3, 2002). Washington Post (February 3, 1998): A4. 59. The Constitution Project, Election Reform Briefing: Statewide 71. Hernandez was eventually convicted of attempting to cover- Voter Registration Databases, March 2002. See also: Demos, up the election fraud scheme and sentenced to one year in An Overdue Reform: The Need for Statewide Computerized jail. Governor Chiles again removed him from office. Voter Registration Systems, February 2002. 72. Mike Clary, “Miami Without Mayor as Judge Voids Election: 60. Federal Election Commission, The Impact of the National Voting: ‘Massive ... Fraud’ in Absentee Forms Cited; New Voter Registration Act of 1993 on the Administration of Balloting to Take Place Within 60 Days,” Los Angeles Times Elections for Federal Office, 1995-1996, A Report to the 105th (March 5, 1998): A11; Donald P. Baker, “New Mayoral Congress, 39–41. Election is Ordered for Miami; ‘Fraud and Abuse’ Prevalent, 61. Federal Election Commission, Developing a Statewide Voter Judge Says,” The Washington Post (March 5, 1998): A2. Registration Database: Procedures, Alternatives, and General 73. Florida is one of only seven states that permanently disen- Models, Autumn 1997: 9. franchises persons convicted of felony crimes. Its felony dis- 62. The Constitution Project, Election Reform Briefing: Statewide enfranchisement laws are the harshest in the country, with Voter Registration Databases: 2. about one third of all disenfranchised ex-felons in the U.S. reside in Florida. Human Rights Watch and the Sentencing 63. Ronald Hayduk, “The Weight of History: Electoral Reform Project, Losing the Vote: The Impact of Felony in the Progressive Era and Today,” in Ronald Hayduk and Disenfranchisment Laws in the United States (1998), Kevin Mattson, Democracy’s Moment: Reforming the American http://www.hrw.org/reports98/vote. Political System for the 21st Century (Lanham, MD: Rowman and Littlefield, 2002): 40–41. 74. Greg Palast, The Best Democracy Money Can Buy (Sterling, Virginia: Pluto Press, 2002): 16. 64. Report and Recommendations to Improve the American Elections System, NACO and NACRAC, May 20, 2001. http:// 75. Peter M. Warren, “Dornan Vows Appeal to House if Lead www.naco.org/programs/infotech/elections/election.pdf. is Lost,” Los Angeles Times, Orange County Ed. (November 12, 1996): A1. 65. Alvarez and Ansolabehere, Expanding the Vote: Election Day Registration in California: 14–16. 76. Ibid. 77. Dexter Filkins, Peter M. Warren, and Jean O. Pasco, “Dornan, Sanchez Square Off Before House Task Force,” Los Angeles Times, Orange County Edition (April 20, 1997): A1.

48 Securing the Vote: An Analysis of Election Fraud 78. A recount requested by Dornan reduced the final margin by 87. Carolyn Tuft, “Grand Jury Looks at Voter Registration,” St. five votes. Louis Post-Dispatch (February 14, 2001): A1; Stephanie Simon, “National Perspective: Politics: In St. Louis, Dead 79. See: U.S. Congress, House, Committee on House Oversight, Are Causing Lively Debate With Their Votes,” Los Angeles Task Force for the Contested Election in the 46th Times (February 28, 2001): Part A1, Page 5; Christopher S. Congressional District of California, Dismissing the Election “Kit” Bond, “‘Motor Voter’ Out of Control,” The Washington Contest Against Loretta Sanchez: Report of the Committee on Post (June 27, 2001): A25. House Oversight on H.R. 355, Together with Minority Views (February 12, 1998), H. Rept. 105-416. 88. Jo Mannies and Jennifer LaFleur, “City Mislabeled Dozens as Voting From Vacant Lots; Property Records Appear to be 80. Benjamin Ginsberg and Martin Shefter, Politics by Other in Error, Survey Finds; Just 14 Ballots Are Found Suspect,” Means: Politicians, Prosecutors and the Press from Watergate St. Louis Post-Dispatch (November 5, 2001): A1. Further to Whitewater, Revised and Updated Edition (New York: investigation by the Post-Dispatch fully debunked the vacant W.W. Norton & Company, 1999): 44. lot claims. According to reporter Jo Mannies, “Basically, we 81. Cost estimates are as follows: investigation by the House checked every one of the 2,000-plus props [properties] listed Oversight Committee ($300,000); expenditures by the INS as vacant lots with voters, and found virtually all had houses to conduct data analysis ($500,000); reimbursement to Dornan on them—had been misclassified by the assessor’s office.” for costs associated with his contest ($320,000); reimburse- (E-mail correspondence with the author, February 25, 2002.) ment to Sanchez for her defense ($250,000). These costs do 89. St. Louis County judge Robert S. Cohen said, “This process not include the expenditures by the Orange County Registrar had taken them hours and hours. Some had babies with them; of Voters to conduct an internal review and assist the Committee some had wheelchairs; some had taken off work. We were in its investigation, the Orange County District Attorney’s trying to accommodate people in a long line and get them Office for its criminal investigation of Hermandad Mexicana in and out. We were erring on the side of allowing people to Nacionale, or the California Secretary of State’s Office for its vote. Rejecting an American citizen at the poll who appears investigation of noncitizen voting in Orange County. to have engaged in no fraud ... it’s a difficult thing to turn 82. “California Won’t Prosecute Noncitizen Voters,” The Washington that person away and say you cannot vote, you cannot par- Post (March 1, 1998): A19. ticipate in the democracy today.” Jo Mannies, “Secretary of State Says Local Judges Erred in Election; 1,233 People Were 83. Missouri, Office of the Secretary of State, Mandate for Reform: Improperly Allowed to Vote, Report Says,” St. Louis Post- Election Turmoil in St. Louis, November 7, 2000, Report by Dispatch (July 25, 2001): A1. Secretary of State Matt Blunt (July 24, 2001): 39–46. 90. In one of three recent reports on voting in St. Louis, Secretary 84. Carolyn Tuft, “Bond Wants Federal Investigation of Problems of State Blunt called the communications between local polls at City Polls; He Accuses Democrats of ‘Criminal Enterprise’ and the St. Louis City Board of Elections on election day in Keeping Polls Open Late; Democrats Criticize Election 2000 “grossly inadequate.” One of his recommendations for Board,” St. Louis Post-Dispatch (November 10, 2000): A1. improving election administration on election day was the 85. Jo Mannies, “Vote Fraud Charges are Hogwash, Clay Says, providing of working cell phones to local poll workers and But Bond Stands Firm,” St. Louis Post-Dispatch (February elections judges and the installation of more telephone lines 21, 2001): C2. at Board of Elections headquarters so that poll workers could more easily access the inactive voter files by calling in their 86. See Tuft. Bond’s assumption of criminal intent behind the inquiries. On election day 2000 in St. Louis, many cell phones effort to clear out what all parties agree was a chaotic situ- at the local polls had no batteries and a new telephone system ation inside many St. Louis polling places, may have a per- at the Board of Elections malfunctioned, preventing judges sonal dimension. Speaking of his successful run for governor from checking whether voters were listed on the inactive file. in Missouri in 1972, Bond said, “They [St. Louis Democrats] Under such circumstances, Missouri voters must get a court tried the same stunt on me. This time was one too many”— order to vote, a partial explanation for why so many court referring to his belief that St. Louis Democrats intention- orders were issued. Blunt’s recommendations were heeded ally kept the polls open until midnight in 1972 to prevent for the March 6, 2001, municipal primary election. See his election as the youngest governor in the state’s history. Missouri, Office of the Secretary of State, Making Every Vote See Mannies (February 11, 2001). One of the lawyers for Count: A Report of Secretary of State Matt Blunt to the People the Democrats in 2000 was Douglas Dowd, the son of Ed of Missouri (January 29, 2001). Dowd Sr., the man Bond defeated in 1972.

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